| People v Abodalo |
| 2019 NY Slip Op 09279 [178 AD3d 1067] |
| December 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jalal Abodalo, Appellant. |
Patrick Michael Megaro, Forest Hills, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Barbara Kornblauof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A.Harrington, J.), rendered June 28, 2018, convicting him of course of sexual conduct against achild in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution established by a preponderance of theevidence that venue was proper in Nassau County (see CPL 20.40 [1]; People vRibowsky, 77 NY2d 284, 291-292 [1991]; People v Lee, 165 AD3d 838, 839 [2018]; People v Guzman, 153 AD3d1273, 1274 [2017]).
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 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 contends, based upon post-verdict examinations of the trial transcript, that theinterpreter used during the trial made errors in translation such that he was denied a fair trial. Tothe extent that this argument is based on matter that is dehors the record, it is not reviewable ondirect appeal (see People vManzanales, 170 AD3d 752, 753 [2019]; People v Bethea, 159 AD3d 710, 713 [2018]; People v Krivoi, 81 AD3d 978[2011]). To the extent that this argument is based on matter that does appear in the record, it iswithout merit (see People vMosquero, 128 AD3d 985, 986 [2015]; cf. People v Maxwell, 89 AD3d 1108, 1109 [2011]).
The defendant's contention that he was improperly excluded from a sidebar conference isunpreserved for appellate review, as he raised no objection at trial (see People v Glover, 96 AD3d777, 778 [2012]). In any event, the contention is without merit, since the defendantknowingly, voluntarily, and intelligently waived his right to be present at legal sidebarconferences (see People v Antommarchi, 80 NY2d 247 [1992]; People v Reyes, 169 AD3d 721,721 [2019]; People v Maldonado,167 AD3d 1046, 1047 [2018]). Moreover, the sidebar conferences at issue involved purelylegal matters and, thus, did not constitute a material stage of the proceeding (see People vCollins, 99 NY2d 14, 19 [2002]; People v Breland, 220 AD2d 678, 679 [1995]).
We agree with the Supreme Court's determination to deny the defendant's Batsonchallenge (see Batson v Kentucky, 476 US 79 [1986]), as the defendant failed to make aprima facie showing of purposeful discrimination in the People's exercise of peremptorychallenges. The defendant merely contended that the prosecution peremptorily challenged threeout of six jurors with Spanish-sounding last names. The defendant failed to offer any showing offacts and circumstances sufficient to raise an inference of purposeful discrimination (see People v Hecker, 15 NY3d625, 653-655 [2010]; People v Childress, 81 NY2d 263, 267-268 [1993]; Peoplev Bolling, 79 NY2d 317, 325 [1992]; People v Mancha, 162 AD3d 903, 903 [2018]; People v Santos, 105 AD3d 1064,1065 [2013]; People v Redish, 262 AD2d 664, 665 [1999]).
The defendant contends that he was deprived of a fair trial by the prosecutor's misconductduring summation. The claimed instances of misconduct are either unpreserved for appellatereview, constituted fair comment on the evidence, were fair responses to arguments and theoriespresented in the defense summation, were within the permissible bounds of rhetorical comments,or were not, either individually or collectively, so egregious as to deprive the defendant of a fairtrial (see People v Mairena, 160AD3d 986, 988 [2018]; People vBaez, 137 AD3d 805 [2016]; People v Pringle, 136 AD3d 1061, 1063 [2016]; People v Scurry, 123 AD3d 949[2014]; People v Cherry, 127 AD3d879, 880 [2015]).
"The defendant's contention that the sentence imposed by the Supreme Court improperlypenalized him for exercising his right to a jury trial is unpreserved for appellate review, becausehe did not set forth the issue on the record at the time of sentencing" (People v Musheyev, 162 AD3d794, 795 [2018]; see People vHodge, 154 AD3d 963, 965 [2017]; People v Cruz, 137 AD3d 1158, 1160 [2016]). In any event, thiscontention is without merit. "The fact that the defendant received a harsher sentence after trialthan he was offered during plea negotiations does not indicate that he was punished forexercising his right to a trial" (People vCroom, 171 AD3d 781, 784 [2019]). "There is no indication in the record that thesentence[ ] [was] the result of vindictiveness or retribution for the defendant's refusal to accept aplea and his exercise of the right to a jury trial" (id. at 784). Moreover, the sentenceimposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P.,Cohen, Miller and Hinds-Radix, JJ., concur.