| People v Erskine |
| 2011 NY Slip Op 08952 [90 AD3d 674] |
| December 6, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Erskine, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort,and Christine V. Sama of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered December 18, 2008, convicting him of murder in the second degree (three counts), upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court erred in disallowing his peremptorychallenges to two prospective white jurors because he provided sufficient race-neutralexplanations for challenging them (see Batson v Kentucky, 476 US 79 [1986]; Peoplev Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). Defense counsel'sproffered explanation for challenging one of the two jurors was that she "simply didn't like[him]," had not "ask[ed him] anything, didn't get a feel for him, and [had] confirmed with [her]client and he also did not like [him]." This explanation amounted, essentially, to no reason at all(see People v Carillo, 9 AD3d333 [2004]; People v Padgett, 303 AD2d 524 [2003]; People v Smith, 251AD2d 355 [1998]; People v Stewart, 238 AD2d 361 [1997]). Defense counsel's challengeto the second juror was based on counsel's purportedly mistaken belief that he was a retiredpolice officer. That juror, however, clearly stated during voir dire that he was a retired sanitationworker, and the Supreme Court properly determined that defense counsel's proffered explanationwas not genuine (see Miller-El v Cockrell, 537 US 322, 338-339 [2003]; see alsoMiller-El v Dretke, 545 US 231, 244 [2005]; People v McIndoe, 277 AD2d 252[2000]; cf. People v Lebron, 293 AD2d 689 [2002]). Although the Supreme Court didnot use the word "pretext," the finding of pretext can be reasonably inferred from the SupremeCourt's language in disallowing the defendant's challenges to the two prospective jurors (seePeople v Payne, 88 NY2d 172, 185 [1996]; People v Padgett, 303 AD2d 524 [2003];People v Stewart, 238 AD2d 361 [1997]). Thus, the Supreme Court properly disallowedthe defendant's peremptory challenges.
The defendant's contentions that he was deprived of due process and a fair trial by theelicitation of certain testimony from the victims' mothers and by certain remarks made by theprosecutor during summation are unpreserved for appellate review. The defendant failed toobject to the introduction of the challenged evidence (see CPL 470.05 [2]; People v Laigo, 70 AD3d 970[2010]; People v Miller, 59 AD3d463 [2009]), or to the challenged remarks (see CPL 470.05 [2]; People v Lopez, 69 AD3d 958[2010]; People v Friel, 53 AD3d667 [2008]; People v Carrieri,49 AD3d 660 [2008]). In any event, the challenged remarks constituted fair comment on theevidence (see People v Halm, 81 NY2d 819 [1993]; [*2]People v Ashwal, 39 NY2d 105 [1976]), and, to the extent thatsome of the testimony may have been improper, the error in admitting such evidence washarmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that it contributed to his conviction (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Miller, 59AD3d 463 [2009]).
The defendant's contention that trial counsel's failure to preserve certain claims for appellatereview constituted ineffective assistance of counsel is without merit (see People v Greenlee, 70 AD3d966 [2010]; People v Taberas,60 AD3d 791, 793 [2009]; People vAcevedo, 44 AD3d 168 [2007]; see also People v Friel, 53 AD3d 667 [2008]; People v Rose, 47 AD3d 848[2008]). Skelos, J.P., Hall, Lott and Cohen, JJ., concur.