| People v Lemay |
| 2010 NY Slip Op 00282 [69 AD3d 757] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kareem Lemay, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered August 2, 2007, convicting him of criminal possession of a controlled substance in thefourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
As a threshold matter, the defendant's legal sufficiency claim is unpreserved for appellatereview, as the defendant failed to move to dismiss the indictment at the close of the People's case(see People v Pinder, 269 AD2d 547 [2000]). In any event, the evidence was legallysufficient to prove the defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the court erred in denying his motion pursuant to CPL330.30 is without merit. Not every misstep by a juror rises to the inherently prejudicial level atwhich reversal is automatically required. Each case must be examined on its unique facts todetermine the nature of the misconduct and the likelihood that prejudice was engendered (seePeople v Rodriguez, 100 NY2d 30 [2003]; People v Clark, 81 NY2d 913 [1993]).The defendant failed to show that improper conduct by a juror prejudiced any of his substantialrights (see People v McDonald, 40AD3d 1125 [2007]). Absent a showing of prejudice to a substantial right, proof of jurormisconduct does not entitle a defendant to a new trial (see People v Rodriguez, 100NY2d 30 [2003]).
The defendant's contention that the court erred in denying his Batson challenge(see Batson v Kentucky, 476 US 79 [1986]) because the prosecutor's explanation forexercising peremptory challenges with [*2]respect to two blackjurors was a pretext for racial discrimination is unpreserved for appellate review (see Peoplev James, 99 NY2d 264, 272 [2002]; People v Jacobs, 54 AD3d 969 [2008]; People v Booker, 49 AD3d 658,659 [2008]) and, in any event, is without merit (see People v Booker, 49 AD3d at 659;People v Thompson, 34 AD3d852, 853 [2006]).
In view of the seriousness of the charged crime, the defendant's criminal history, and hisstatus as a second felony offender, the sentence imposed was not excessive (see People vBrown, 198 AD2d 424 [1993]; People v Wilson, 190 AD2d 835 [1993]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Covello, Santucci and Balkin, JJ., concur.