| People v Bowman |
| 2009 NY Slip Op 00397 [58 AD3d 747] |
| January 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ernest Bowman, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered June 14, 2005, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court erred in denying his Batsonchallenges (see Batson v Kentucky, 476 US 79 [1986]) with respect to theprosecutor's use of peremptory challenges to exclude four prospective jurors based on their race.The defendant's contention is unpreserved for appellate review with respect to two of theprospective jurors, since the arguments pertaining to them are based on grounds which were notarticulated in the Supreme Court (see People v Allen, 86 NY2d 101, 110-111 [1995];People v Sumpter, 286 AD2d 450 [2001]). In any event, the defendant's contention iswithout merit. The Supreme Court is in the best position to determine whether the profferedexplanations for peremptory challenges are credible (see People v Jeffreys, 258 AD2d474 [1999]; People v Jupiter, 210 AD2d 431, 434 [1994]). The Supreme Court'sdetermination that the explanations were nonpretextual is entitled to great deference on appealand should not be disturbed where, as here, it is supported by the record (see People vHernandez, 75 NY2d 350, 356-357 [1990]; People v Fuller, 302 AD2d 405 [2003]).[*2]
The defendant's contention that he was denied dueprocess and the right of confrontation by the complainant's testimony regarding statements madeby a friend who was not called as a witness is also unpreserved for appellate review (seeCPL 470.05 [2]; People v South,47 AD3d 734 [2008]; People vDombroff, 44 AD3d 785, 787 [2007]; People v Howell, 44 AD3d 686 [2007]; People v Wilson,295 AD2d 545 [2002]). In any event, this contention is without merit, as the complainant'stestimony was not elicited for its truth, but rather, to explain the sequence of events leading up tothe defendant's arrest (see People vBarboza, 24 AD3d 460 [2005]; People v Newland, 6 AD3d 330 [2004]).
Contrary to the defendant's contention, he was not denied a fair trial by certain statementsmade by the prosecutor in summation. The remarks at issue either were a fair response to thedefendant's summation (see People vRhodes, 11 AD3d 487 [2004]; People v Adamo, 309 AD2d 808, 810 [2003]),constituted fair comment on or reasonable inferences drawn from the evidence (see People vAshwal, 39 NY2d 105 [1976]), or were harmless (see People v Crimmins, 36 NY2d230 [1975]). Spolzino, J.P., Florio, McCarthy and Dickerson, JJ., concur.