| People v Simmons |
| 2011 NY Slip Op 04282 [84 AD3d 1120] |
| May 17, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DerekSimmons, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and KarenWigle Weiss of counsel), for respondent.
Motion by the appellant for leave to reargue an appeal from a judgment of the SupremeCourt, Queens County (Lewis, J.), rendered November 19, 2008, which was determined by adecision and order of this Court dated February 1, 2011.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the motion is granted, and upon reargument, the decision and order of this Courtdated February 1, 2011 (People v Simmons, 81 AD3d 668 [2011]), is recalled andvacated, and the following decision and order is substituted therefor:
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis J.),rendered November 19, 2008, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In order for a statement to be admissible under the exception to the hearsay rule fordeclarations against penal interest, a four-part test must be satisfied: (1) the declarant must beunavailable to testify at the defendant's trial, (2) the declarant must have competent knowledge ofthe facts, (3) the declarant must have known at the time the statement was made that it wasagainst his or her penal interest, and (4) there must be independent supporting proof indicatingthat the statement is trustworthy and reliable (see People v Ennis, 11 NY3d 403, 412-413[2008], cert denied 556 US —, 129 S Ct 2383 [2009]; People v Brensic, 70NY2d 9, 15 [1987]; People v Settles, 46 NY2d 154, 167 [1978]; People vToussaint, 74 AD3d 846 [2010]; People v Singh, 47 AD3d 733, 734 [2008], certdenied 555 US —, 129 S Ct 570 [2008]). Here, the Supreme Court properly declinedto admit a statement offered by the defendant because the statement, made by a nontestifyingwitness, that the witness "did what he had to do," was too ambiguous to be against penal interestor to be judged either trustworthy or reliable. Since the statement was properly excluded as [*2]inadmissible hearsay, the defendant's contention that hisconstitutional right to present a defense was violated is without merit (see People vCepeda, 208 AD2d 364 [1994]).
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 group or gender, without more, is rarely dispositive on the issue ofan impermissible 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 thatthe defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inferenceof racial discrimination" (People v Scott, 70 AD3d 977, 977 [2010]; see People vRobert G., 241 AD2d 499, 500 [1997]).
Although it appears that the prosecutor failed to correct inaccurate trial testimony of one ofthe People's witnesses (see Napue v Illinois, 360 US 264, 269-270 [1959]; People vBaxley, 84 NY2d 208, 213-214 [1994]; People v Pelchat, 62 NY2d 97, 99, 107[1984]), the error was harmless (see People v Steadman, 82 NY2d 1, 8-9 [1993];People v Jones, 31 AD3d 666, 667 [2006]). "The evidence of the defendant's guilt. . . without reference to the improper testimony, was overwhelming, and there [is]no reasonable possibility that the error might have contributed to his conviction"(People v Bournes, 60 AD3d 687, 688 [2009]; see People v Crimmins, 36 NY2d230, 237 [1975]; People v Rush, 44 AD3d 799, 800 [2007]).
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Leventhal andSgroi, JJ., concur.