| People v Dunham |
| 2019 NY Slip Op 03886 [172 AD3d 524] |
| May 16, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Dunham, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Emma L. Shreefter ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nuñez, J. at suppressionhearing; Bruce Allen, J. at jury trial and sentencing), rendered January 4, 2011, convictingdefendant of criminal possession of weapon in the second degree, and sentencing him to a termof 4
The court did not violate defendant's rights under CPL 310.30 and People v O'Rama(78 NY2d 270 [1991]) by failing to place on the record and discuss in advance with the attorneysa jury note requesting exhibits, consisting of a revolver and all of the photographs within anunambiguously defined category. Notes that only require the ministerial act of sending exhibitsinto the jury room do not implicate the requirements of O'Rama (People v Ziegler, 78 AD3d 545[1st Dept 2010], lv denied 16 NY3d 838 [2011]). Moreover, the parties had explicitlyagreed that the jurors could see exhibits "without going on the record" (see People v Green, 82 AD3d 593[1st Dept 2011], lv denied 17 NY3d 816 [2011]). There was nothing about the content ofeither branch of the jury's request, or the parties' stipulation, that called for input from counsel,and we find defendant's arguments to the contrary unpersuasive.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The record supports the court's finding that the nondiscriminatory reasonprovided by the prosecutor for the challenge in question was not pretextual. This finding isentitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd500 US 352 [1991]). The prosecutor explained that the panelist's demeanor displayed hesitation,suggesting an attempt to evade questions. The court understood the prosecutor's explanation to bedemeanor-based, and it expressly stated that it had made similar observations of the panelist'sdemeanor. Although not required to deny a Batson claim, such observations by the courtitself are of "great importance" (Thaler v Haynes, 559 US 43, 49 [2010]).
The hearing court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations, which are supported by the record (seePeople v Prochilo, 41 NY2d 759, 761 [1977]). Concur—Gische, J.P., Kahn, Gesmer,Singh, Moulton, JJ.