| People v Martinez |
| 2009 NY Slip Op 00408 [58 AD3d 754] |
| January 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseMartinez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan,J.), rendered May 2, 2006, as amended May 31, 2006, convicting him of sexual abuse in the firstdegree, rape in the third degree, menacing in the second degree, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
The trial court properly denied the defendant's Batson challenge (see Batson vKentucky, 476 US 79 [1986]). In response to the defendant's challenge, the prosecutor statedthat she used a peremptory strike to remove a black male prospective juror because he waswearing a shirt upon which was printed the image of Al Capone and the words "Al Caponeoriginal gangster." Contrary to the defendant's contention, this explanation was faciallyrace-neutral and satisfied the prosecutor's burden under the second prong of the Batsonanalysis (see People v James, 99 NY2d 264, 270 [2002]; People v Allen, 86NY2d 101, 104, 109 [1995]). "Unless a discriminatory intent is inherent in the prosecutor'sexplanation, the reason offered will be deemed race neutral" (Hernandez v New York,500 US 352, 360 [1991]; see Purkett v Elem, 514 US 765, 768 [1995]; People vAllen, 86 NY2d 101, 109-110 [1995]). Moreover, the defendant failed to meet his burden[*2]of demonstrating, under the third prong of the Batsonanalysis, that the facially race-neutral explanation given by the prosecutor was a pretext forracial discrimination (see People v James, 99 NY2d 264, 271 [2002]; People vPayne, 88 NY2d 172, 181 [1996]; People v Allen, 86 NY2d 101, 111 [1995]).
We reject the defendant's challenge to certain of the prosecutor's statements duringsummation. The challenged remarks largely were fair comment on the evidence or fair responseto defense counsel's summation (seePeople v Wright, 54 AD3d 695, 696 [2008]; People v Dick, 48 AD3d 697 [2008]; People v Simon, 34 AD3d 852[2006]; People v McHarris, 297 AD2d 824, 825 [2002]). While two of the prosecutor'scomments arguably were improper, any potential prejudice which may have resulted wasremedied by the prompt action of the trial court in sustaining the defense counsel's objections,striking or instructing the jury to disregard the comments, and providing the jury with curativeinstructions (see People v Wilson,50 AD3d 711, 712 [2008]; People v Acquista, 41 AD3d 491, 492 [2007]; People v Wiggins, 31 AD3d 584[2006]; People v Warren, 27 AD3d496, 498 [2006]; People vWilliams, 14 AD3d 519 [2005]).
We decline the defendant's request to modify the sentence imposed in the interest of justice.
The defendant's remaining contention does not require reversal. Mastro, J.P., Fisher, Millerand Carni, JJ., concur.