| People v Hernandez |
| 2013 NY Slip Op 04435 [107 AD3d 504] |
| June 13, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jose Hernandez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), renderedNovember 17, 2010, as amended December 10, 2010, convicting defendant, after a jurytrial, of rape in the first degree and sexual abuse in the first degree, and sentencing him toan aggregate term of eight years, unanimously affirmed.
The court properly denied defendant's application made pursuant to Batson vKentucky (476 US 79 [1986]). The record supports the court's finding that thenondiscriminatory reasons provided by the prosecutor for the challenges in question werenot pretextual. This finding is entitled to great deference (see Snyder v Louisiana,552 US 472, 477 [2008]; People v Hernandez, 75 NY2d 350 [1990], affd500 US 352 [1991]), and we do not find any disparate treatment by the prosecutor ofsimilarly situated panelists.
The court properly denied defendant's motion to set aside the verdict based on jurormisconduct. In a postverdict discussion with a sworn juror, defense counsel learned thatthe juror knew someone who had been the victim of a rape that had shared some materialsimilarities with this case. Since the only voir dire question on this subject asked whetherany prospective juror had a close friend who had been a crime victim, defendant did notestablish that the juror failed to answer a voir dire question honestly; in any event,defendant did not establish that any such concealment was deliberate. Defendant'sarguments based on the juror's body language during the postverdict interview are highlyspeculative. Furthermore, defendant did not establish that the allegedly concealedinformation would have been a proper basis to excuse the juror for cause. The juror'sknowledge of a date-rape victim's failure to report the crime would not have establishedan implied bias, or otherwise supported a challenge for cause, particularly in light of thejuror's assurances during voir dire that she could be fair. Thus, the juror's apparentlyinadvertent omission did not affect a substantial right, and does not provide grounds forreversal (see CPL 330.30 [2]; People v Rodriguez, 100 NY2d 30, 35[2003]; see also McDonough Power Equipment, Inc. v Greenwood, 464 US 548,556 [1984]). Finally, defendant was "not entitled to a hearing based on expressions ofhope that a hearing might reveal the essential facts" (People v Johnson, 54 AD3d 636, 636 [2008], lv denied11 NY3d 898 [2008]).
The People did not violate their disclosure obligations under Brady vMaryland (373 US 83 [1963]), and the court properly rejected defendant's request foran adverse [*2]inference charge with respect to asurveillance videotape made, and then erased, by the store where the incident occurred.The record establishes that this tape was never in the possession of the police orprosecution. Regardless of whether the police were in a position to ascertain theexistence of this tape or acquire it, they had no duty to do so (see People v Hayes, 17 NY3d46, 50-52 [2011]; People vWalloe, 88 AD3d 544 [1st Dept 2011], lv denied 18 NY3d 963 [2012]).Concur—Acosta, J.P., Saxe, Renwick, Richter and Clark, JJ.