| People v Marshall |
| 2015 NY Slip Op 06830 [131 AD3d 1074] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tremayne Marshall, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, CamilleO'Hara Gillespie, and Avshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered October 25, 2012, convicting him of robbery in the first degree(two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Under the circumstances of this case, the Supreme Court improvidently exercised itsdiscretion in denying the defendant's request to withdraw his peremptory challenge to aprospective juror (cf. People vParrales, 105 AD3d 871, 872 [2013]). Contrary to the People's contention, thedefendant sufficiently preserved this argument for appellate review (see CPL470.05 [2]; People v Roberts, 215 AD2d 148, 148 [1995]). However, the errorwas harmless, as there was overwhelming evidence of the defendant's guilt and nosignificant probability that the error contributed to his convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
The defendant contends that the Supreme Court's improper denial of his request towithdraw his peremptory challenge is not subject to harmless error analysis, since theerror deprived him of his constitutional right to a jury in whose selection he had a voice(see People v Anderson, 70 NY2d 729, 730 [1987]). We disagree. Whileperemptory challenges "are a mainstay in a litigant's strategic arsenal," they are "not atrial tool of constitutional magnitude" (People v Luciano, 10 NY3d 499, 502 [2008]; see People v Hecker, 15 NY3d625, 662 [2010]). The right to exercise peremptory challenges "is protected by theCriminal Procedure Law, which provides that each party 'must be allowed' an equalnumber of peremptory challenges and that a court 'must exclude' any juror challenged"(People v Luciano, 10 NY3d at 502, quoting CPL 270.25 [1], [2]; see Peoplev Hecker, 15 NY3d at 662). Therefore, "the unjustified denial of a peremptorychallenge violates CPL 270.25 (2) and requires reversal without regard to harmless error"(People v Hecker, 15 NY3d at 662). However, there is no statutory right towithdraw a peremptory challenge. Further, the instant case does not involve a situation inwhich the People attempted to peremptorily challenge a juror who had been accepted bythe defense in violation of CPL 270.15 (2), inasmuch as the People did not object to thedefendant's request to withdraw the peremptory challenge (cf. People v Quinones,222 AD2d 208, 208-209 [1995]). Moreover, the defendant was not prejudiced by the lossof the peremptory challenge since, at the conclusion of jury selection, defense counselhad exercised only 9 of his 15 peremptory challenges (cf. People v Pereira, 220AD2d 696, 696 [1995]). Accordingly, under the circumstances of this case, the error washarmless.
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel under the New York Constitution since, viewing defense counsel'sperformance in totality, counsel provided meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]; People v Fields, 109AD3d 553, 554 [2013]). Moreover, the defendant was not deprived of the effectiveassistance of counsel under the United States Constitution (see Strickland vWashington, 466 US 668 [1984]).
The defendant failed to preserve for appellate review his remaining contentions thatthe Supreme Court discharged potential jurors based upon hardship without conducting asufficient inquiry, and improperly delegated its duties to the jury clerk (see CPL470.05 [2]; People v Jordan,125 AD3d 787, 787 [2015]; People v Johnson, 116 AD3d 883, 883 [2014]; People v King, 110 AD3d1005, 1005 [2013]; Peoplev Toussaint, 40 AD3d 1017, 1017-1018 [2007]; cf. People v Roberts,215 AD2d 148, 148 [1995]). In any event, those contentions are without merit (seePeople v Jordan, 125 AD3d at 787; People v Johnson, 116 AD3d at 883;People v King, 110 AD3d at 1005). Dillon, J.P., Dickerson, Chambers andRoman, JJ., concur.