| People v Hodges |
| 2012 NY Slip Op 07202 [99 AD3d 629] |
| October 25, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Tyhiem Hodges, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered December 2,2008, convicting defendant, after a jury trial, of criminal possession of a weapon in the seconddegree, and sentencing him to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). Defendant failed to meet his burden of establishing that the prosecutor'sfacially nondiscriminatory reasons for peremptorily challenging a prospective juror werepretextual (see People v Payne, 88 NY2d 172, 181 [1996]).
The record supports the court's rejection of defendant's claim of pretext, and that finding isentitled to great deference (see Snyder v Louisiana, 552 US 472, 477 [2008]; People vHernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]). We do not find anydisparate treatment by the prosecutor of similarly situated panelists. The prosecutor consistentlyexercised peremptory challenges against panelists with incarcerated relatives, with the exceptionof a panelist whose situation was different in some respects. The latter panelist had a relativewith a past incarceration, but this panelist also had a relative who was one of the prosecutor'scolleagues in the District Attorney's office. Any incompleteness of the record regarding theprosecutor's reasons for not challenging the latter panelist is attributable to defendant's failure tocall that panelist to the court's and prosecutor's attention as an alleged example of disparatetreatment.
Defendant failed to preserve his procedural objections to the court's disposition of theapplication, including his challenge to the court's phrasing of its step-three ruling (see e.g. People v Rodriguez, 93 AD3d595, 595 [1st Dept 2012], lv denied 19 NY3d 966 [2012]), and we decline to reviewthem in the interest of justice. As an alternative holding, we also reject them on the merits(see id. at 596).
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits. We also find that the verdict wasnot against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The inference is inescapable thatdefendant was the person who had just been seen secreting a pistol, [*2]particularly in light of the very close temporal and spatial proximitybetween the complainant's observations and defendant's apprehension.
The court properly permitted the People to introduce, on their rebuttal case, medical recordsshowing that defendant had only a minor abrasion when admitted to prison. This properlyrebutted testimony by defense witnesses who claimed that defendant was severely beaten by thepolice. "Evidence is not collateral . . . when it is relevant to some issue other thancredibility and [wa]s offered for the purpose of disproving facts set forth by a witness for theopposing side on direct examination" (People v Beavers, 127 AD2d 138, 141 [1st Dept1987], lv denied 70 NY2d 642 [1987]). By creating an issue of alleged police brutality,defendant opened the door to rebuttal evidence tending to negate that claim.Concur—Mazzarelli, J.P., Sweeny, Renwick, Richter and Román, JJ.