| People v Santos |
| 2017 NY Slip Op 04300 [150 AD3d 1270] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Santos, Appellant. |
Lynn W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and SolomonNeubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered June 20, 2013, convicting him of murder in the second degree and burglary in the firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At approximately 2:20 a.m. on December 12, 2011, Police Officer Peter Figoski was shot inthe face when he and his partner responded as backup to a call to the 911 emergency number of aburglary in progress at a house in Brooklyn. The officer was rushed to the hospital, where he diedshortly thereafter. Five people were arrested and indicted in connection with the burglary andshooting: Lamont Pride, the alleged shooter, as well as the defendant and his alleged accomplicesin the burglary, Nelson Morales, Ariel Tejada, and Michael Velez. Following a jury trial, thedefendant was convicted of murder in the second degree (Penal Law § 125.25 [3])and burglary in the first degree (Penal Law § 140.30 [1]).
The defendant's contention that the Supreme Court abdicated its judicial function by allowingprospective jurors who concluded that they could not be fair and impartial to opt out of servingon the jury without further inquiry is unpreserved for appellate review (see CPL 470.05[2]; People v King, 27 NY3d147, 157 [2016]; People vCunningham, 119 AD3d 601, 601 [2014]; People v McGhee, 4 AD3d 485, 485 [2004]; People vBoozer, 298 AD2d 261 [2002]), and, in any event, without merit.
The Supreme Court properly granted the People's reverse-Batson application (seeBatson v Kentucky, 476 US 79 [1986]) with respect to two prospective jurors (see People v Bell, 126 AD3d 718,720 [2015]; People v Fogel, 73AD3d 803, 804 [2010]; People vClarke, 64 AD3d 612, 612 [2009]). The court's determination that the faciallyrace-neutral reasons given for the defendant's peremptory challenges to those jurors werepretextual is entitled to great deference on appeal and will not be disturbed where, as here, thedetermination is supported by the record (see People v Occhione, 94 AD3d 1021, 1022 [2012]; People v Fogel, 73 AD3d 803,803-804 [2010]).
[*2] There is no merit to thedefendant's contentions that his rights to confrontation, due process, and a fair trial were violatedwhen the Supreme Court revised its ruling to allow into evidence portions of the defendant'svideotaped statement to law enforcement officials that contained out-of-court statements made byan assistant district attorney that certain codefendants had implicated the defendant in the crimes.The defense counsel opened the door to the admission of those statements in his openingstatement (see People v Reid, 19NY3d 382, 384-385 [2012]; Peoplev Bryant, 39 AD3d 768, 768 [2007]; People v Gladden, 298 AD2d 462, 463[2002]; People v Simpson, 256 AD2d 205, 206 [1998]). Moreover, the statements werenot received for their truth, but to explain why the defendant confessed to the police when he didand to rebut the defense's contention that the defendant's confession was coercively derived (see People v Reynoso, 2 NY3d820 [2004]; People v Bryant, 39 AD3d at 768; People v Ewell, 12 AD3d 616, 617 [2004]; People v Perez, 9 AD3d 376, 377[2004]). Further, the jury was pointedly instructed by the court that it was not to consider any ofthose statements as evidence against the defendant, and the jury is presumed to have followedsuch admonition (see People v Davis, 58 NY2d 1102, 1104 [1983]).
The Supreme Court's charge to the jury concerning the voluntariness of the defendant'sstatement to the police accurately stated the law, and the court did not improvidently exercise itsdiscretion in declining to give the jury an expanded charge (see People v Dunlap, 51 AD3d 943, 944 [2008]).
The sentence imposed on the conviction of burglary in the first degree was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Chambers, Roman and Connolly,JJ., concur.