| People v Jones |
| 2010 NY Slip Op 06528 [76 AD3d 716] |
| August 31, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kevin Jones, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Jill Gross-Marksof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered April 25, 2006, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree (three counts), upon a jury verdict, andimposing sentence. By decision and order of this Court dated June 2, 2009, the appeal was heldin abeyance and the matter was remitted to the Supreme Court, Queens County, to hear andreport on the defendant's challenge to the prosecutor's exercise of peremptory challenges to threeblack male venirepersons (see People vJones, 63 AD3d 758 [2009]). The Supreme Court has filed its report. Justice Fisher hasbeen substituted for former Justice Spolzino (see 22 NYCRR 670.1 [c]).
Ordered that the judgment is affirmed.
An objection pursuant to Batson v Kentucky (476 US 79 [1986]) involves athree-step analysis. First, the objecting party must establish a prima facie case of discriminationin the prosecutor's exercise of peremptory challenges to prospective jurors (see Hernandez vNew York, 500 US 352, 358-359 [1991]; People v Luciano, 10 NY3d 499, 503 [2008]; People vAllen, 86 NY2d 101, 109 [1995]; People v Reid, 57 AD3d 695 [2008]). If that burden is met, in steptwo the prosecutor must set forth a neutral reason for the peremptory challenges (see Peoplev Allen, 86 NY2d at 109; People vReid, 57 AD3d 695 [2008]). "When defendant challenges as pretextual the People'sexplanation as to a particular juror, the inquiry has become factual in nature and moves to stepthree" (People v Allen, 86 NY2d at 110; see People v James, 99 NY2d 264, 271[2002]). In step three, the trial court resolves the factual dispute of whether the prosecutorimpermissibly discriminated in the exercise of the challenge (see People v James, 99NY2d at 271; People v Allen, 86 NY2d at 110). If the trial court concludes that aproffered reason is pretextual, the defendant has met his or her burden of proving intentionaldiscrimination (see People v Allen, 86 NY2d at 110).
Upon remittal, the Supreme Court properly concluded that the defendant's Batsonchallenge was without merit by virtue of the race-neutral explanations offered by theprosecutor for the three peremptory challenges at issue, and the defendant's failure to carry hisburden of proving that the explanations were pretextual (see People v Reid, 57 AD3d at696; People v Booker, 49 AD3d658, 659 [2008]).
"[A] prosecutor's summation must be examined in the context of the arguments advanced bythe defendant, and an argument is fair if it is responsive to arguments and issues raised by thedefense" (People v Scoon, 303 AD2d 525, 525 [2003]; see People v Ahmed, 40 AD3d869 [2007]). Counsel, in summation, may "comment upon every pertinent matter of factbearing upon the questions the jury have to decide" (People v Ashwal, 39 NY2d 105,109 [1976] [internal quotation marks omitted]; see People v Dorsette, 47 AD3d 728 [2008]). Here, there is nomerit to the defendant's challenge to the prosecutor's comment during summation that the policedid not want to get involved in a "fire fight" in a residential neighborhood. In light of theevidence that the police believed that the defendant was armed, that he ran from the police whenapproached, and was apprehended in a residential backyard, the comment was not improper.
The remainder of the defendant's challenges to remarks made by the prosecution insummation are unpreserved for appellate review because the remarks either were not objected toor were the subject of only general objections (see People v Baskerville, 57 AD3d 911, 911 [2008]; People v Dorsette, 47 AD3d 728[2008]; People v Ahmed, 40 AD3d869 [2007]). In any event, the remarks constituted either fair response to the defensesummation or fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976];People v Watts, 58 AD3d 647,648 [2009]; People v Dorsette, 47AD3d 728 [2008]; People vAhmed, 40 AD3d 869 [2007]).
Finally, the defendant's contention that the prosecutor transformed himself into a witnessduring summation by performing a physical demonstration for the jury is unpreserved forappellate review. In any event, the record does not support the defendant's contention that aphysical demonstration was in fact performed. Fisher, J.P., Santucci, Angiolillo and Eng, JJ.,concur.