| People v Johnson |
| 2019 NY Slip Op 02897 [171 AD3d 1089] |
| April 17, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Willie Johnson, Appellant. |
Laurette D. Mulry, Riverhead, NY (Edward E. Smith of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Alfred J. Croce and Glenn Green ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (BarbaraKahn, J.), rendered January 10, 2017, convicting him of manslaughter in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
We agree with the County Court's determination to deny the defendant's Batsonchallenge (see Batson v Kentucky, 476 US 79 [1986]) to the prosecutor's exercise ofperemptory challenges to strike two black prospective jurors. Once the prosecutor set forth arace-neutral reason for the peremptory strikes, the defendant failed to meet his burden ofpersuasion that the reason was pretextual (see People v Hecker, 15 NY3d 625, 663-664 [2010]; People vSmocum, 99 NY2d 418, 422 [2003]; People v Gonsalez, 144 AD3d 841, 842 [2016]; People v Allen, 71 AD3d 778, 779[2010]). The defendant's claim that the prosecutor discriminated against "young adults" in theexercise of his peremptory challenges is unpreserved for appellate review, as it was not raisedbefore the County Court (see People v Stephens, 84 NY2d 990, 992 [1994]; People v Salazar, 132 AD3d 418,418 [2015]; People v Smith, 226 AD2d 566, 566 [1996]). In any event, this contention iswithout merit, as "young adults" are not a cognizable group with regard to discrimination in juryselection (see People v Minucci, 68AD3d 1017, 1018 [2009]; People vAssi, 63 AD3d 19, 28 [2009], affd 14 NY3d 335 [2010]). Furthermore, defensecounsel's failure to renew his Batson challenge did not constitute ineffective assistance ofcounsel (see generally People vVirapen, 147 AD3d 981, 983 [2017]; People v Hale, 147 AD3d 975, 976 [2017]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d at 348-349), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contentions regarding the prosecutor's summation remarks are largelyunpreserved for appellate review (see CPL 470.05 [2]; People v Dien, 77 NY2d885 [1991]; People v Giddens, 161AD3d 1191, 1193 [2018]; People vRosario, 149 AD3d 982, 983 [2017]). In any event, the challenged summation remarkswere fair comment upon the evidence, responsive to defense counsel's summation, or otherwisedo not warrant reversal (see People v Galloway, 54 NY2d 396, 399 [1981]; People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Carter, 152 AD3d 786, 786 [2017]; People v Johnson, 127 AD3d 785,786 [2015]; People v Harris, 117AD3d 847, 859 [2014], affd 26 NY3d 1 [2015]). Furthermore, defense counsel'sfailure to object to those remarks did not constitute ineffective assistance of counsel (seePeople v Giddens, 161 AD3d at 1194; People v McGowan, 111 AD3d 850, 851 [2013]).
The defendant's contention that the County Court violated the procedure for complying withCPL 310.30 set forth in People v O'Rama (78 NY2d 270 [1991]) is unpreserved forappellate review (see CPL 470.05 [2]; People v Clark, 28 NY3d 556, 566 [2016]; People v Mack, 27 NY3d 534, 537[2016]). In any event, the court responded meaningfully to the jury's inquiry (see CPL310.30).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Chambers, Cohen and Brathwaite Nelson, JJ., concur.