| People v Rosario |
| 2019 NY Slip Op 06873 [175 AD3d 1222] |
| September 26, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Alberto Rosario, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 1, 2015,convicting defendant, after a jury trial, of criminal possession of a weapon in the second and thirddegrees, and sentencing him, as a second felony offender, to an aggregate term of six years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The evidence supports the conclusionthat defendant simultaneously possessed a pistol and a magazine loaded with ammunition,thereby possessing a "[l]oaded firearm" (Penal Law § 265.00 [15]).
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). We find that the record supports the court's finding that thenondiscriminatory reasons provided by the prosecutor for the challenges in question were notpretextual. "Step three of the Batson inquiry involves an evaluation of the prosecutor'scredibility" (Snyder v Louisiana, 552 US 472, 477 [2008]), and the court's finding in thisregard is entitled to great deference (see People v Hernandez, 75 NY2d 350 [1990],affd 500 US 352 [1991]).
The court providently exercised its discretion in denying defendant's mistrial motion, madewhen the court, in apologizing to the jury for a delay, made a brief reference to defendant'sincarceration. Although the court should have explained the delay without mentioningdefendant's jail status, this did not warrant a mistrial, because the court provided suitable curativeinstructions (see People v Jenkins, 88 NY2d 948, 950-951 [1996]), and because the jurywas already aware, by way of evidence, that defendant had been incarcerated for at least part ofthe pendency of the case.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Renwick,Tom, Gesmer, Oing, JJ.