| People v Avila |
| 2010 NY Slip Op 00162 [69 AD3d 642] |
| January 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JustinAvila, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),dated September 21, 2006, convicting him of criminal possession of a weapon in the third degree(three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) that allowed inquiry into his prior conviction forassault involving a weapon was not an improvident exercise of discretion. The mere fact that thedefendant has committed a crime similar to the one for which he is currently being tried does notpreclude inquiry into the prior crime (see People v Hayes, 97 NY2d 203, 208 [2002]; People v White, 60 AD3d 1095,1096 [2009]; People v Boseman, 161 AD2d 601, 602 [1990]).
The prosecutor's reason for exercising a peremptory challenge to exclude a potential jurorbased on his youth relative to the other jurors did not violate the defendant's constitutional rights(see Batson v Kentucky, 476 US 79 [1986]; People v Payne, 88 NY2d 172[1996]). Age is not a cognizable protected category where the reason for the challenge wasrelated to the facts of the case (see People v Smalls, 249 AD2d 495 [1998]; People vMcMichael, 218 AD2d 671 [1995]; People v Manigo, 165 AD2d 660 [1990]).
The prosecutor's comments on summation either were made in response to the arguments ofdefense counsel which attacked the credibility of the prosecution witnesses, were fair commentson the evidence (see People v Galloway, 54 NY2d 396 [1981]; People vMcHarris, 297 AD2d 824 [2002]; People v Cariola, 276 AD2d 800 [2000]), or wereharmless in light of the court's curative instructions, which obviated any prejudice to thedefendant (see People v Ferguson, 82 NY2d 837 [1993]; People v Cabrera, 11 AD3d 552[2004]). Covello, J.P., Angiolillo, Lott and Roman, JJ., concur.