| People v Cosme |
| 2013 NY Slip Op 07057 [110 AD3d 1096] |
| October 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jose Cosme, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Brooke E. Barnes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered October 25, 2011, convicting him of robbery in the second degreeand criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied hisBatson challenge (see Batson v Kentucky, 476 US 79 [1986]) to theprosecutor's peremptory strikes of two prospective jurors during the first round of juryselection. The defendant did not demonstrate circumstances supporting a prima facieshowing that would establish a pattern of purposeful exclusion sufficient to raise aninference of racial discrimination (see id. at 96-97; People v Childress,81 NY2d 263 [1993]; People v Bolling, 79 NY2d 317 [1992]; People vJenkins, 75 NY2d 550 [1990]).
The defendant correctly contends that the prosecutor improperly asked him oncross-examination whether a prosecution witness's testimony was "not true" because itcontradicted the defendant's recollection of events (see People v Galloway, 54NY2d 396, 400 [1981]; Peoplev Lawrence, 4 AD3d 436, 437 [2004]; People v Berrios, 298 AD2d 597,597 [2002]; People v Leuthner, 216 AD2d 327, 328 [1995]; People vSimms, 130 AD2d 525, 525-526 [1987]; People v Sepulveda, 105 AD2d854, 857 [1984]; People v Buehler, 104 AD2d 1045, 1045 [1984]; People vCalderon, 88 AD2d 604, 604 [1982]; People v Ochoa, 86 AD2d 637, 637[1982]; People v Santiago, 78 AD2d 666, 666 [1980]; People v Yant, 75AD2d 653, 653 [1980]; People v Rodriguez, 62 AD2d 929, 929 [1978];People v Bryant, 60 AD2d 810, 811 [1978]). We also agree with the defendantthat the prosecutor improperly cross-examined him about his silence when he wasapprehended by the police (see People v De George, 73 NY2d 614 [1989];People v Conyers, 52 NY2d 454 [1981]). However, under the facts of this case,the errors were harmless and did not deprive the defendant of a fair trial (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Indeed, with respect to the questionsconcerning the defendant's silence after being apprehended, the trial court alleviated anyprejudice by sustaining defense counsel's objections to the two offending questions,striking the second question and answer from the record, and directing the jury todisregard the second question and answer.[*2]
The defendant's remaining contentions arewithout merit. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.