| People v Booker |
| 2008 NY Slip Op 02167 [49 AD3d 658] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VirgilRussell Booker, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz, Amy V. Garcia,and Laurie K. Spinella of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.),rendered January 16, 2004, convicting him of murder in the second degree (two counts) andattempted robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress his statements to law enforcement officials, as thestatements were made after the intelligent, knowing, and voluntary waiver of his Mirandarights (see Miranda v Arizona, 384 US 436 [1966]), and were not the product of coercion(see People v Cooper, 36 AD3d828 [2007]; People v Miles, 276 AD2d 566, 567 [2000]). Moreover, there is nomerit to the defendant's claim, made in his supplemental pro se brief, that his statements shouldhave been suppressed because he was intoxicated (see People v Schompert, 19 NY2d300, 305 [1967], cert denied 389 US 874 [1967]; People v Benjamin, 17 AD3d 688, 689 [2005]). Additionally, thedefendant's claim that his statements were the fruit of an illegal arrest is unpreserved for appellatereview (see People v Rogers, 245 AD2d 395, 396 [1997]; People v Clink, 143AD2d 838, 839 [1988]), and, in any event, is without merit, as the police had probable cause toarrest him (see People v Savage, 29AD3d 1022, 1023 [2006]; People vClarke, 13 AD3d 551, 552 [2004]; People v Butler, 175 AD2d 252, 253 [1991]).[*2]
The defendant's challenge to the trial court'sSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) is without merit.The court properly balanced the probative value of the defendant's prior crimes on the issue of hiscredibility and the possible prejudice to him, and avoided any undue prejudice by precluding theprosecutor from eliciting the underlying facts of the prior convictions (id. at 377; see People v McNair, 45 AD3d872 [2007]; People v Williams, 292 AD2d 474, 475 [2002]; People vMcBride, 255 AD2d 459, 460 [1998]).
During jury selection, the defendant raised two Batson challenges (see Batson vKentucky, 476 US 79 [1986]). With respect to his first challenge, the defendant did notaddress the merits of the prosecution's facially race-neutral explanation. Accordingly, hiscontention that the explanation was pretextual is unpreserved for appellate review (see Peoplev Harris, 294 AD2d 375 [2002]; People v West, 281 AD2d 647 [2001]). In anyevent, the defendant's first challenge was properly denied because he failed to satisfy his burdenof demonstrating, under the third prong of the Batson test, that the facially race-neutralexplanation given by the prosecutor was a pretext for racial discrimination (see People v Thompson, 34 AD3d852, 853 [2006]). The defendant's second Batson challenge was properly denied,since he failed to make the requisite prima facie showing of discrimination (see People vHarrison, 272 AD2d 554 [2000]; People v Jeffreys, 258 AD2d 474, 475 [1999];see also People v Rodriguez, 220 AD2d 208, 209 [1995]).
The defendant's challenge to the legal sufficiency of the evidence with respect to the count offelony murder and the two counts of attempted robbery in the first degree, as set forth in both hismain and supplemental pro se briefs, is unpreserved for appellate review (see CPL470.05 [2]; People v Oates, 33AD3d 823 [2006]; People v Jones 309 AD2d 819, 819-820 [2003]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of allcounts beyond a reasonable doubt. Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the court properly admitted photographs depicting thecrime scene and the palm of his hand into evidence (see People v Wood, 79 NY2d 958,960 [1992]; People v Allan, 41AD3d 727, 727-728 [2007]; People v Sierra, 215 AD2d 788, 788-789 [1995]).
The defendant's contention that the trial court should have instructed the jury that a keywitness was an accomplice as a matter of law, and that her testimony accordingly requiredcorroboration, is unpreserved for appellate review (see CPL 470.05 [2]; People vNapolitano, 215 AD2d 782 [1995]; People v Durio, 175 AD2d 842, 844 [1991]). Inany event, this contention is without merit.
The trial court did not err in failing to inquire of a juror if he slept during portions of thesummations. Although defense counsel reported that the juror appeared to be sleeping during hissummation, the court noted that it believed that the juror had not been sleeping. As the court hadthe benefit of its own observations, further inquiry was not required (see People v Lennon, 37 AD3d853, 854 [2007]; People v McIntyre, 193 AD2d 626 [1993]).
Portions of the defendant's claim of ineffective assistance of counsel, raised in hissupplemental pro se brief, are based on matter dehors the record, which cannot be reviewed ondirect appeal (see People v Kadry,30 AD3d 440 [2006]; People v Wingate, 297 AD2d 761, 762 [2002]). To the extentthat this claim can be reviewed, the defendant received meaningful representation (see Peoplev Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137 [1981];People v Mejias, 278 AD2d 249 [2000]). Mastro, J.P., Covello, Eng and Belen, JJ.,concur.