| People v Minucci |
| 2009 NY Slip Op 09494 [68 AD3d 1017] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nicholas Minucci, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and JohnnetteTraill of counsel), for respondent.
Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County(Buchter, J.), rendered July 17, 2006, convicting him of robbery in the first degree as a hatecrime, robbery in the second degree as a hate crime, assault in the second degree as a hate crime,criminal possession of stolen property in the fifth degree (three counts), and criminal possessionof a weapon in the fourth degree, under indictment No. 2629/05, upon a jury verdict, andimposing sentence, and (2) an amended judgment of the same court, also rendered July 17, 2006,revoking a sentence of probation previously imposed by the same court under indictment No.3730/02, upon a finding that he violated a condition thereof, and imposing a sentence ofimprisonment upon his previous adjudication as a youthful offender for assault in the firstdegree.
Ordered that the judgment and amended judgment are affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The Supreme Court properly denied the defendant's Batson-type challenge (seeBatson v Kentucky, 476 US 79 [1986]) to the prosecutor's peremptory strikes removing anumber of prospective jurors allegedly because they were under the age of 30. The defendantfailed to support his contention that persons under the age of 30 constitute a cognizable groupwith regard to discrimination in jury selection (see J. E. B. v Alabama ex rel. T. B., 511US 127, 128 [1994]; People v Ortiz, 302 AD2d 257 [2003]; People v Abdullah,134 AD2d 503 [1987]).[*2]
The defendant's convictions stem from the assault androbbery of a black victim committed in Queens on June 29, 2005. Under the circumstances ofthis case, where the defendant was being tried for hate crimes motivated by race or color, theSupreme Court erred in not permitting one of the defendant's character witnesses to testify thatthe defendant did not have a reputation in the community for being biased and prejudiced againstblack people. The defendant's lack of reputation for prejudice against black people was relevantto his guilt or innocence (see People v Chisolm, 7 AD3d 728, 729 [2004]). Nevertheless,the error was harmless in light of the overwhelming evidence that the crimes at issue weremotivated in substantial part by the defendant's belief and perception regarding race or color(see Penal Law § 485.05 [1]), and the fact that the defendant's two characterwitnesses were permitted to testify as to the defendant's reputation in the community for lack ofbias in general (see People v Crimmins, 36 NY2d 230 [1975]). There was no significantprobability that the error contributed to the convictions.
To the extent that the defendant's claims of ineffective assistance of counsel are based uponmatter dehors the record, they may not be reviewed on direct appeal (see People vSabatino, 41 AD3d 871 [2007]; People v Williams, 41 AD3d 517, 518 [2007]).Insofar as we are able to review these claims, defense counsel provided the defendant withmeaningful representation (see People v Taylor, 1 NY3d 174, 176 [2003]; People vHenry, 95 NY2d 563, 565-566 [2000]; People v Benevento, 91 NY2d 708, 712[1998]; see also People v Sabatino, 41 AD3d at 871).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, either are without merit or do not require reversal. Rivera, J.P., Miller, Dickerson andRoman, JJ., concur.