| People v Rudolph |
| 2015 NY Slip Op 07687 [132 AD3d 912] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Bashan Rudolph, Appellant. |
Del Atwell, East Hampton, N.Y, for appellant, and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Forman, J.), rendered December 11, 2012, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence at trial was legally insufficient to provehis guilt is unpreserved for appellate review, as he made only a general motion to dismissat the close of the People's case, and did not raise the specific grounds that he now raiseson appeal (see People vHawkins, 11 NY3d 484, 491-492 [2008]; People v Burgess, 75 AD3d 650 [2010]; People v Rivera, 74 AD3d993 [2010]; People vStewart, 71 AD3d 797 [2010]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon the exercise of our factual review power (seeCPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633, 644-645 [2006]).
The County Court did not err in denying the defendant's Batson challenge(see Batson v Kentucky, 476 US 79 [1986]). In support of his claim, thedefendant relied only on the number of African American jurors challenged by theprosecutor. He made no showing during the colloquy of any other circumstancessufficient to raise an inference of a pattern of discrimination (see People vJenkins, 84 NY2d 1001, 1002-1003 [1994]; People v Childress, 81 NY2d263, 267 [1993]; People vCuesta, 103 AD3d 913, 914-915 [2013]; People v Valdez-Cruz, 99 AD3d 738 [2012]). Since thedefendant failed to make a prima facie showing of discrimination, the court did not err infailing to require the prosecutor to offer a race-neutral explanation for his use ofperemptory challenges (see People v Jenkins, 84 NY2d at 1003; People vCuesta, 103 AD3d at 915; People v Valdez-Cruz, 99 AD3d at 739).
The County Court did not err in granting a Sirois hearing (see People vSirois, 92 AD2d 618 [1983]), and ruling that a witness's grand jury testimony shouldbe read to the jury in lieu of that witness's testimony at trial. Before the hearing, thePeople proffered specific facts demonstrating a distinct possibility that the defendant hadengaged in witness tampering (see People v Cotto, 92 NY2d 68, 72 [1998]). Theevidence at the hearing, and the inferences that logically flowed therefrom, were [*2]sufficient to support the court's determination, under theclear and convincing evidence standard, that the defendant engaged in or acquiesced inconduct on his behalf that caused the witness's unavailability to testify at trial (see People v Perkins, 7 AD3d644 [2004]).
The defendant's contention that the circumstantial evidence charge was inadequate isunpreserved for appellate review (see People v Gonzalez, 70 AD3d 855 [2010]; People v Reyes, 45 AD3d785, 786 [2007]) and, in any event, without merit.
The defendant's contention in his pro se supplemental brief that he was deprived ofhis right to be present at all material stages of his trial is without merit. Rivera, J.P.,Balkin, Leventhal and Dickerson, JJ., concur.