| People v Tapper |
| 2009 NY Slip Op 05801 [64 AD3d 620] |
| July 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Desmond Tapper, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered November 21, 2005, convicting him of criminal possession of aweapon in the third degree and unlawful wearing of a body vest, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court properly granted the People'sreverse-Batson challenge (see Batson v Kentucky, 476 US 79 [1986]; People v Luciano, 10 NY3d 499,502-503 [2008]). The trial court's determination that the proffered reason for challenging thejuror in question, that she had previously served on a jury, was pretextual, is entitled to greatdeference and is supported by the record (see People v Quito, 43 AD3d 411, 412-413 [2007]; People vRichie, 217 AD2d 84, 89 [1995]).
The trial court providently exercised its discretion in denying the defendant's challenge forcause to a potential juror (see People v Franklin, 7 AD3d 966, 967 [2004]). Even if aprima facie showing of actual bias had been made (see People v Torpey, 63 NY2d 361,367 [1984]), her unequivocal answers demonstrated that she could be fair and impartial (seePeople v Chambers, 97 NY2d 417, 419 [2002]; People v Johnson, 278 AD2d 245[2000]).
The defendant's contention that the prosecutor violated the unsworn witness rule during theprosecutor's cross-examination of him and during summation is unpreserved for appellate reviewand, in any event, is without merit (see People v Paperno, 54 NY2d 294, 302 [1981]; People v Rivera, 27 AD3d 491,492 [2006]; People v Blackwood, 295 AD2d 292, 293 [2002]).
The defendant's challenge to certain remarks made by the prosecutor during summation isunpreserved for appellate review (seePeople v Hollenquest, 48 AD3d 592, 593 [2008]). In any event, the remarks either werefair comment, were within the permissible bounds of rhetorical comment, or do not warrantreversal (see People v Galloway, 54 NY2d 396, 401 [1981]; People v Wright, 40 AD3d 1021[2007]; People v Heide, 206 AD2d 875 [1994], affd 84 NY2d 943 [1994]).[*2]
On this record, we cannot conclude that the defendantwas denied effective assistance of counsel (see Strickland v Washington, 466 US 668[1984]; People v Steele, 135 AD2d 673 [1987]). Rivera, J.P., Spolzino, Angiolillo andBalkin, JJ., concur.