| People v Mohabir |
| 2013 NY Slip Op 07750 [111 AD3d 851] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Matthew Mohabir, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered April 29, 2011, convicting him of robbery in the second degree andunlawful sale or possession of an imitation firearm, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's Batson challenge (see Batson v Kentucky, 476 US79 [1986]) was properly denied, as he failed to make the requisite prima facie showing ofdiscrimination. In order to establish a prima facie case of discrimination in the selectionof jurors under Batson, a defendant must show that the prosecutor exercisedperemptory challenges to remove one or more members of a cognizable racial groupfrom the venire, and that the circumstances support a finding that those peremptorychallenges were used to exclude potential jurors because of their race (see People vBrown, 97 NY2d 500, 507 [2002]). Here, the mere fact that the prosecutor exercisedfour out of nine peremptory challenges against African-American women wasinsufficient to establish a pattern of purposeful exclusion sufficient to raise an inferenceof racial discrimination, and the defendant failed to recite circumstances sufficient toestablish the requisite pattern of discrimination (see id. at 507; People v Lassiter, 44 AD3d877, 878 [2007]; People vFryar, 29 AD3d 919, 920 [2006]; People v Chowdhury, 22 AD3d 596 [2005]; People v Kennerly, 20 AD3d491 [2005]).
Since the defendant did not assert a constitutional right to introduce the evidence ofthe complainant's immigration timeline and status at trial, his constitutional claims areunpreserved for appellate review (see People v Stephens, 84 NY2d 990, 992[1994]; People v Simmons,106 AD3d 1115, 1116 [2013]). Further, the defendant was not denied his right to aneffective cross-examination of the complainant, as he was "afforded a full and fairopportunity to expose infirmities in the complainant's testimony throughcross-examination" (Matter ofDemetri B., 54 AD3d 331, 332 [2008]).
The defendant's allegations of improper bolstering are also unpreserved for appellatereview, as defense counsel either failed to make specific and timely objections to thetestimony at trial or failed to seek further ameliorative action after certain objectionswere sustained (see CPL 470.05 [2]; People v Lewis, 34 AD3d 599 [2006]).[*2]
The Supreme Court properly declined thedefendant's request to instruct the jury that the complainant could be anaccomplice-in-fact, whose trial testimony requires corroboration (see CPL60.22). The defendant offered only unsupported speculation that the witness was aparticipant in the crimes (seePeople v Pelsey, 60 AD3d 1088 [2009]).
The Supreme Court also properly declined the defendant's request for a jury chargeon petit larceny as a lesser-included offense of robbery in the second degree. Consideringthe evidence in the light most favorable to the defendant, there is no reasonable view ofthe evidence that would support a finding that the defendant committed the lesseroffense, but not the greater (seePeople v Vataj, 107 AD3d 610, 611 [2013], lv denied 21 NY3d 1077[2013]; People v Rodriguez, 295 AD2d 544, 544-545 [2002]). Rivera, J.P.,Leventhal, Chambers and Lott, JJ., concur.