| People v Simmons |
| 2014 NY Slip Op 05066 [119 AD3d 1343] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York,Respondent, v Samuel Carl Simmons, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered July 6, 2011. The judgment convicted defendant, upon a jury verdict, ofrape in the first degree, criminal sexual act in the first degree (two counts) and sexualabuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal sexual act in the first degree (Penal Law§ 130.50 [1]), and one count each of rape in the first degree(§ 130.35 [1]) and sexual abuse in the first degree (§ 130.65[1]). Defendant failed to preserve for our review his contention that the prosecutor'sreason for striking a prospective juror was pretextual, "having failed to raise before[Supreme Court] the specific claim he now raises on appeal" (People v Ali, 89 AD3d1412, 1414 [2011], lv denied 18 NY3d 881 [2012]; see People vJones, 284 AD2d 46, 48 [2001], affd 99 NY2d 264 [2002]; People v Holloway, 71 AD3d1486, 1486-1487 [2010], lv denied 15 NY3d 774 [2010]). In any event,defendant failed to meet his burden of establishing, with respect to the third step of theBatson analysis, that the People engaged in the discriminatory use of peremptorychallenges (see Batson v Kentucky, 476 US 79, 94-98 [1986]; People v Hecker, 15 NY3d625, 634-635 [2010], cert denied 563 US &mdash, 131 S Ct 2117 [2011])."Specifically, defense counsel did not compare the challenged juror[ ] tosimilarly-situated unchallenged prospective jurors, point to factors in the challengedjuror['s] background that made [her] likely to be pro-prosecution, or enunciate any factorthat suggested that the prosecutor exercised the challenge[ ] due to the prospectivejuror['s]" race (People vMacShane, 11 NY3d 841, 842 [2008]; see People v Donahue, 81 AD3d 1348, 1350 [2011], lvdenied 16 NY3d 894 [2011]).
Defendant further contends that the court was required to excuse, sua sponte, aprospective juror who did not unequivocally state that he could be impartial. "By failingto raise that challenge in the trial court, however, defendant failed to preserve it for ourreview" (People v Stepney,93 AD3d 1297, 1297-1298 [2012], lv denied 19 NY3d 968 [2012]). In anyevent, "[e]ven assuming, arguendo, that the court erred in [refusing to excuse, sua sponte,the prospective juror] for cause, we conclude that the error does not require reversalbecause defendant had not exhausted his peremptory challenges and did not peremptorilychallenge that prospective juror" (People v Arguinzoni, 48 AD3d 1239, 1241 [2008], lvdenied 10 NY3d 859 [2008]; see CPL 270.20 [2]; People v Irvin,[*2]111 AD3d 1294, 1295 [2013]; People v Brown, 101 AD3d1627, 1628 [2012]). Defendant also contends that he was denied effective assistanceof counsel because his attorney failed to exercise a for-cause or peremptory challengewith respect to that prospective juror. Defendant, however, has not met "his burden ofshowing the absence of a legitimate explanation for th[at] perceived error" (People v Barboni, 21 NY3d393, 407 [2013]; see Peoplev Reed, 115 AD3d 1334, 1336-1337 [2014]; Irvin, 111 AD3d at1296; Stepney, 93 AD3d at 1298).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Whalen, JJ.