| People v English |
| 2014 NY Slip Op 05200 [119 AD3d 706] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Marc C. English, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered May 24, 2012, convicting him of criminal mischief in the thirddegree, unauthorized use of a motor vehicle in the second degree, and petit larceny, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the integrity of the grand jury proceedingswas not impaired when defense counsel's supervisor was not permitted to be in the grandjury room during the defendant's testimony. The defendant was not deprived of his rightto counsel pursuant to CPL 190.52. Defense counsel was present in the grand jury room,and there is nothing in the record to indicate that he was incapable of effectivelyrepresenting the defendant at the grand jury proceedings (see People v Sutton, 43 AD3d133, 136 [2007]). There is no indication in the record that the prosecutor preventedthe defendant from conferring with his attorney during the grand jury proceedings, orthat the defendant sought to confer with counsel and was unable to do so (see Peoplev Diaz, 211 AD2d 402 [1995]). The defendant was permitted to speak with counseleach time he asked to do so. The defendant's remaining contentions regarding the grandjury proceedings are based upon matter dehors the record and cannot be reviewed on thisdirect appeal from the judgment of conviction (see People v Sivels, 114 AD3d 708 [2014]; People v Palmer, 29 AD3d606 [2006]; People v Sain, 261 AD2d 488 [1999]).
The Supreme Court did not improvidently exercise its discretion in denying thedefendant's Batson challenge (see Batson v Kentucky, 476 US 79[1986]). The prosecutor provided race-neutral reasons for exercising a peremptorychallenge against a prospective juror, which were focused on her quiet demeanor andwhether she would be able to speak up during deliberations (see People v Wells, 7 NY3d51, 58 [2006]). The defendant failed to prove purposeful discrimination by theprosecution in exercising a peremptory challenge against the prospective juror, and thereis no basis to disturb the court's determination that the prosecutor's proffered race-neutralreasons were not pretextual (seePeople v Hecker, 15 NY3d 625, 656 [2010]; People v Carrington, 105 AD3d 970 [2013]).
Finally, the Supreme Court's Sandoval ruling (see People v Sandoval,34 NY2d 371 [1974]) [*2]was not an improvidentexercise of discretion. The court balanced the relevant factors and formulated anappropriate compromise (see People v Stewart, 265 AD2d 586 [1999]; Peoplev Hodges, 262 AD2d 332 [1999]). The court permitted the People to inquire as to thenames and underlying facts of only three offenses: criminal sale of marijuana in thefourth degree, resisting arrest, and bail jumping. None of those offenses was the same asor similar to any of the offenses charged in the instant case, and thus, any questioning asto the facts of the prior offenses would not have had the effect of establishing that thedefendant had a propensity to commit the crimes charged (see People v Lebron,213 AD2d 678 [1995]). The offenses of criminal sale of marijuana in the fourth degree,resisting arrest, and bail jumping reflect the defendant's willingness to place his owninterests above those of society and were relevant to his credibility, and the courtproperly balanced their probative value against the risk of unfair prejudice (see People v Alnutt, 101 AD3d1461 [2012]; People vSalsbery, 78 AD3d 1624 [2010]; People v Grady, 40 AD3d 1368 [2007]; People vHunter, 180 AD2d 752 [1992]). The number of convictions as to which inquiry waspermitted was not excessive in light of the defendant's extensive record and the stepstaken by the court to limit the prejudice to the defendant (see People v Plummer, 68AD3d 416 [2009]). Furthermore, the fact that some of the convictions were morethan 10 years old did not mandate preclusion (see People v Moise, 199 AD2d 423[1993]; People v Cajigas, 168 AD2d 628 [1990]). Because the facts of the crimeswith which the defendant was charged here, and the crimes about which the courtpermitted the People to inquire were not similar, the court's ruling did not prevent thedefendant from testifying at trial (see People v Perez, 130 AD2d 595 [1987];People v Cuesta, 119 AD2d 688 [1986]). Dillon, J.P., Lott, Austin and Barros,JJ., concur.