| People v Gray |
| 2010 NY Slip Op 09532 [79 AD3d 1067] |
| December 21, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TerrellGray, 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 (Crecca, J.),rendered December 18, 2006, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence. By decision and order of this Court dated December 22, 2009, the appeal was heldin abeyance and the matter was remitted to the County Court, Suffolk County, to hear and report onthe defendant's challenge to the prosecutor's exercise of a peremptory challenge against a blackvenireperson (see People v Gray, 68AD3d 1131 [2009]). The Supreme Court has filed its report.
Ordered that the judgment is affirmed.
Upon remittal, the County Court properly concluded that the defendant's Batson challengewas without merit (see Batson v Kentucky, 476 US 79 [1986]).
The County Court providently exercised its discretion in removing a sworn juror in the midst of juryselection (see People v Oyewole, 220 AD2d 624 [1995]; see also People v Buford,69 NY2d 290, 299 [1987]).
The County Court improvidently exercised its discretion in denying the defendant's request toredact two brief portions of a videotape of a crime scene walk-through in which the victim's body couldbe seen, as those portions are prejudicial and immaterial (see People v Stevens, 76 NY2d833, 835 [1990]; People v Pobliner, 32 NY2d 356, 370 [1973]). However, any error inadmitting the entire videotape into evidence was harmless, as there was overwhelming evidence of thedefendant's guilt, and no significant probability that the error contributed to his conviction (seePeople v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Paulman, 5 NY3d 122, 134 [2005]; People v Martin, 54 AD3d 776, 777[2008]; cf. People v Heman, 198 AD2d 434, 435 [1993]).
The defendant's contention that the evidence was not legally sufficient to support the conviction isnot preserved for appellate review, as defense counsel merely made a general motion for a trial order ofdismissal, asserting that the People failed to establish a prima facie case (see CPL 470.05 [2];People v Hawkins, 11 NY3d 484,491-492 [2008]). In any event, viewing the evidence in the light most [*2]favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Balkin, Belen and Chambers, JJ., concur.