| People v Pinto |
| 2008 NY Slip Op 08514 [56 AD3d 494] |
| November 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Pinto, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, andTerry-Ann Llewellyn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered March 8, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not improperly grant the People'sreverse-Batson application (see Batson v Kentucky, 476 US 79 [1986]). Thecourt concluded that the facially race-neutral explanation provided by defense counsel to explainthe peremptory challenge in question was pretextual. The trial court is in the best situation toassess the credibility of counsel's explanations (see Hernandez v New York, 500 US 352,364 [1991]; People v Thompson, 51AD3d 951 [2008]). The defendant failed to show how the employment status of the juror'shusband was related to the facts of this case, which indicated that the race-neutral explanationprovided by defense counsel was pretextual (see People v Patterson, 12 AD3d 694 [2004]; People v Campos,290 AD2d 456, 457 [2002]). Additionally, the record establishes that defense counsel failedto challenge other seated jurors who had backgrounds similar to that of the challenged juror(see People v Allen, 86 NY2d 101, 110-111 [1995]; People v McLaurin, 47 AD3d 843 [2008]; People v Sanford,297 AD2d 759 [2002]). Accordingly, we see no reason to disturb the trial court'sdetermination.[*2]
The defendant also contends that the Supreme Courterred in curtailing defense counsel's cross-examination of a witness called by the People. TheSupreme Court properly sustained the prosecutor's objection to the form defense counsel used inhis attempt to impeach the witness with a prior inconsistent statement (see Richardson,Evidence § 502 [Prince 10th ed]; People v Wise, 46 NY2d 321, 325 [1978];Larkin v Nassau Elec. R.R. Co., 205 NY 267, 268-269 [1912]; People v Wilkins,221 AD2d 392, 393 [1995]), and any further cross-examination of this witness on thisparticular matter was curtailed by defense counsel since he never revisited this matter. Alsowithout merit are the defendant's arguments that he was improperly prevented from using apolice report to refresh the witness's recollection (see generally People v Neff, 287 AD2d809, 810 [2001]; People v Betts, 272 App Div 737, 738 [1947]) and from questioning thewitness about the alleged suggestiveness of a photographic array (see People v Ross, 208AD2d 572 [1994]).
The defendant's claim that he was deprived of his due process right to a fair trial when thecourt permitted the prosecutor to question him during cross-examination regarding a prior bad actis not preserved for appellate review, as the defendant failed to object to the alleged error at trial(see CPL 470.05 [2]; People vJohnson, 45 AD3d 606 [2007]). In any event, the prosecutor properly questioned thedefendant regarding the alleged prior bad act during his cross-examination since the defendantopened the door to this line of questioning during his direct examination (see People vGagliardo, 307 AD2d 934 [2003]; People v Gibbs, 286 AD2d 865, 867 [2001]).Likewise, the defendant's contention regarding a detective's testimony about information receivedfrom an informant is unpreserved for appellate review (see CPL 470.05 [2]) and, in anyevent, without merit.
The defendant's remaining contention is without merit. Rivera, J.P., Dillon, Covello andAngiolillo, JJ., concur.