| People v Sarkodie |
| 2019 NY Slip Op 03628 [172 AD3d 909] |
| May 8, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Justin Sarkodie, Appellant. |
Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, Howard B.Goodman, and Diane R. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil JonFiretog, J.), rendered February 11, 2015, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him toan indeterminate term of imprisonment of 25 years to life on the conviction of murder in thesecond degree, and a concurrent determinate term of imprisonment of 15 years imprisonment, tobe followed by 5 years of postrelease supervision, on the conviction of criminal possession of aweapon in the second degree. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of murder in the second degree from anindeterminate term of imprisonment of 25 years to life to an indeterminate term of imprisonmentof 20 years to life; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's suppression arguments are preserved forappellate review (see CPL 470.05 [2]; People v Jones, 164 AD3d 1363, 1364 [2018]). Nevertheless, therecord demonstrates that the initial stop of the defendant was based on reasonable suspicion,which ripened into probable cause supporting the defendant's subsequent de facto arrest (seePeople v Hicks, 68 NY2d 234, 240 [1986]; People v De Bour, 40 NY2d 210, 223[1976]; People v Lawson, 163AD3d 996, 998 [2018]). Additionally, the defendant's statements to the police, which weregiven after he was informed of, and waived, his Miranda rights (see Miranda vArizona, 384 US 436, 448 [1966]), were voluntarily made (see People v Mateo, 2NY3d 383, 413 [2004]; People vSands, 164 AD3d 613, 614 [2018]; People v Gelin, 128 AD3d 717, 718 [2015]). Further, there is nosupport for the defendant's contention that the hearing testimony of the police officers wasincredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief(see People v Pleasant, 146 AD3d985, 987 [2017]; People vHobson, 111 AD3d 958, 959 [2013]). Accordingly, we agree with the Supreme Court'sdenial of that branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d at 410; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's Batson challenge (see Batson v Kentucky, 476 US 79 [1986])to the prosecutor's exercise of peremptory challenges was properly denied, as he failed to makethe requisite prima facie showing of discrimination (see People v Childress, 81 NY2d263, 268 [1993]; People v Cutting,150 AD3d 873, 874 [2017]; Peoplev Sydoriak, 147 AD3d 791, 792 [2017]; People v Rudolph, 132 AD3d 912, 913 [2015]). Additionally, hiscontention that the Supreme Court coerced him into the use of a peremptory challenge as to aparticular juror is unpreserved for appellate review (see CPL 470.05 [2]; People vJames, 99 NY2d 264, 272 [2002]; People v Grant, 128 AD3d 1088, 1091 [2015]; People v Occhione, 94 AD3d1021, 1022 [2012]), and, in any event, without merit.
The Supreme Court did not improvidently exercise its discretion in admitting evidencerelating to the defendant's gang affiliations. Such evidence was probative of the defendant'smotive and to explain the relationships of the individuals involved (see People v Bailey, 32 NY3d 70,83 [2018]; People v Bruno, 127AD3d 986, 986 [2015]; People vMurray, 116 AD3d 1068, 1069 [2014]; People v Guevara, 96 AD3d 781, 781 [2012]). The probative valueof the testimony outweighed any prejudice resulting from its admission (see People v Guerrero, 150 AD3d883, 885 [2017]; People vLazaro, 125 AD3d 1007, 1007 [2015]).
The defendant's contention that the prosecutor made improper comments during summationis partially unpreserved for appellate review, since the defendant did not object to the majority ofthe remarks he now challenges (seePeople v Hankerson, 149 AD3d 778, 779 [2017]). In any event, the comments wereeither fair comment on the evidence and the reasonable inferences to be drawn therefrom or fairresponse to defense counsel's summation, or otherwise did not deprive the defendant of a fairtrial (see People v Hardy, 166 AD3d645 [2018]; People v Wells,161 AD3d 1200, 1201 [2018]).
The defendant's claim of ineffective assistance of counsel, raised in his supplemental pro sebrief, is without merit (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137 [1981]). The defendant failed to demonstrate "the absence of strategic or[other] legitimate explanations" for counsel's alleged shortcoming (People v Robles, 116 AD3d 1071,1071 [2014]; see People v Baugh,91 AD3d 965, 966 [2012]).
The sentence imposed was excessive to the extent indicated herein (see People v Naqvi, 132 AD3d779 [2015]; People v Garguilio,57 AD3d 797 [2008]; People v Nelson, 118 AD2d 596 [1986]; People vAgard, 111 AD2d 821 [1985]).
The defendant's remaining contention does not require reversal. Scheinkman, P.J., Balkin,Hinds-Radix and Christopher, JJ., concur.