| People v Cobb |
| 2010 NY Slip Op 07184 [77 AD3d 673] |
| October 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MichaelCobb, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Shulamit RosenblumNemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.),rendered January 5, 1993, convicting him of murder in the second degree, robbery in the first degree,criminal possession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied his Batsonclaim (see Batson v Kentucky, 476 US 79 [1986]), as he failed to establish a prima faciecase of discrimination. A disproportionate number of challenges to prospective jurors who aremembers of a particular racial or ethnic group, without more, is rarely dispositive on the issue of animpermissible discriminatory motive (see People v Brown, 97 NY2d 500, 507 [2002];People v Childress, 81 NY2d 263, 267 [1993]). "In the absence of a record demonstratingother circumstances supporting a prima facie showing, the Supreme Court correctly found that thedefendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racialdiscrimination" (People v Scott, 70AD3d 977, 977 [2010]; see People v Robert G., 241 AD2d 499, 500 [1997]).
The defendant's contention that the Supreme Court failed to administer the "oath of truthfulness"(People v Hoffler, 53 AD3d 116,121 [2008]) to the venirepersons, as required by CPL 270.15 (1) (a), is unpreserved for appellatereview (see People v Schrock, 73 AD3d1429, 1432 [2010]; People vHampton, 64 AD3d 872, 877 [2009]). In any event, contrary to the defendant's contention,that oath was administered (see People vBridges, 63 AD3d 752, 753 [2009]).
The defendant contends that he was deprived of his right to be present during the impaneling of thejury (see People v Firrira, 258 AD2d 666 [1999]). However, the defendant does not disputethat his waiver of his right to be present during sidebar discussions with prospective jurors wasknowing, voluntary, and intelligent (seePeople v Jackson, 59 AD3d 736 [2009]; People v Velasquez, 298 AD2d 608,608-609 [2002], affd 1 NY3d 44 [2003]; see generally People v Antommarchi, 80NY2d 247, 249-250 [1992]), nor that he waived his right to be present when challenges were made inthe robing room regarding prospective [*2]jurors (see People vJackson, 236 AD2d 628 [1997]), nor that he was present during the voir dire of the jurors, andthe record belies the defendant's contention that he did not have an opportunity to discuss thechallenges before they were made. Contrary to the defendant's contention, "the challenges were giveneffect in his presence when the accepted jurors were sworn in open court" (People v Santana,213 AD2d 568, 568 [1995]; see People v Firrira, 258 AD2d at 666; People v Parks,210 AD2d 437 [1994]; People v Moore, 209 AD2d 445 [1994]).
The defendant's contention that the Supreme Court erred in instructing the jury on the meaning ofthe word "deprive," as it related to the count of robbery in the first degree, is unpreserved for appellatereview (Penal Law § 155.00 [3]; see Penal Law § 160.15 [2]; People v Fraiser, 58 AD3d 866[2009]). In any event, "inasmuch as there is no reasonable view of the evidence under which thedefendant did not intend to permanently deprive the complainant of the property, the defendant'schallenge to the court's charge as given is without merit" (People v Fraiser, 58 AD3d at 866).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
Contrary to the defendant's contention, raised in both his main and supplemental pro se briefs, hewas afforded meaningful representation (see People v Henry, 95 NY2d 563, 566 [2000];People v Ford, 86 NY2d 397, 404 [1995]).
The remaining contention raised in the defendant's main brief is unpreserved for appellate reviewand, in any event, is without merit.
The defendant's contention raised in his supplemental pro se brief that the evidence was legallyinsufficient to support the jury's verdict on the counts of murder in the second degree and robbery in thefirst degree is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), it was legally sufficient to establish the defendant's guilt on those counts beyond areasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt on those counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The remaining contentions raised in the defendant's supplemental pro se brief are without merit.Dillon, J.P., Florio, Leventhal and Chambers, JJ., concur.