| People v Chance |
| 2015 NY Slip Op 01660 [125 AD3d 993] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Quaruan Chance, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andVictor Barall of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered November 5, 2012, convicting him of criminal possession of aweapon in the third degree and criminal possession of a controlled substance in theseventh degree, upon a jury verdict, and sentencing him to a determinate term ofimprisonment of six years, followed by a period of three years of postrelease supervision,and a fine in the sum of $5,000 upon his conviction of criminal possession of a weaponin the third degree, and a determinate term of imprisonment of one year upon hisconviction of criminal possession of a controlled substance in the seventh degree, withthe terms of imprisonment to run concurrently with each other.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating so much of the sentence as imposed a fine in the sum of $5,000 uponthe conviction of criminal possession of a weapon in the third degree; as so modified, thejudgment is affirmed.
Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the opportunity of thefinder of fact to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Delamota, 18 NY3d 107, 116-117 [2011]; People v Romero, 7 NY3d633 [2006]).
The defendant contends that his Batson application should have been granted(see Batson v Kentucky, 476 US 79 [1986]). "The standard mandated byBatson is a relatively straightforward one. First, a defendant asserting a claimunder the Batson formula must present a prima facie case by showing that theprosecution exercised its peremptory challenges to remove one or more members of acognizable racial group from the venire and that there exist facts and other relevantcircumstances sufficient to raise an inference that the prosecution used its peremptorychallenges to [*2]exclude potential jurors because of theirrace. Once that prima facie showing has been made, the burden shifts and the prosecutionmust come forward with a race-neutral explanation for its challenged peremptorychoices" (People v Childress, 81 NY2d 263, 266 [1993] [citations omitted]).
As the People correctly concede on appeal, the Supreme Court took a narrow andunrealistic view, for Batson purposes, of who was black, when it questionedwhether prospective jurors of biracial origin or Caribbean origin were of the samecognizable group as prospective jurors of African descent who were born in the UnitedStates. Nevertheless, the defendant failed to meet his burden of presenting a prima faciecase by showing that the prosecution exercised its peremptory challenges to removeblack prospective jurors from the venire because of their race. On this record, thedefendant's reliance on the People's removal of prospective black jurors, without more,was insufficient for a prima facie showing of discrimination (see People vBrown, 97 NY2d 500, 508 [2002]; People v Jenkins, 84 NY2d 1001,1002-1003 [1994]; People vSantos, 105 AD3d 1064, 1065 [2013]).
The sentence was excessive to the extent indicated herein. Rivera, J.P., Miller,Hinds-Radix and Duffy, JJ., concur.