| People v Jeremiah |
| 2021 NY Slip Op 03052 [194 AD3d 840] |
| May 12, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ronald Jeremiah, Appellant. |
Paul Skip Laisure, New York, NY (Samuel Barr of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Avshalom Yotam, andCoby Ballard of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T.Hecht, J.), rendered October 19, 2018, as amended October 23, 2018, convicting him of criminalsexual act in the first degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review an order of protection issued at the time of sentencing.
Ordered that upon the appeal from the judgment, as amended, so much of the order ofprotection as directed that it remain in effect until and including October 18, 2052, is vacated, onthe law and as a matter of discretion in the interest of justice, and the matter is remitted to theSupreme Court, Kings County, for a new determination of the duration of the order of protection,consistent herewith; and it is further,
Ordered that the judgment, as amended, is affirmed.
The defendant contends that on the People's reverse Batson-Kern application (seeBatson v Kentucky, 476 US 79, 106 [1986]; People v Kern, 75 NY2d 638, 657-658[1990]), the Supreme Court erred in determining that the People met their prima facie burden ofdemonstrating purposeful discrimination on the basis of gender as to the defendant's exercise ofperemptory challenges. This contention is unpreserved for appellate review as defense counselproffered race-neutral explanations for her exercise of peremptory challenges without disputingthe issue of whether a prima facie case of gender discrimination had been established (seeCPL 470.05 [2]; People v Carew,167 AD3d 1032, 1032 [2018]; People v Thomas, 210 AD2d 515, 515 [1994]). In any event, the court's determination that the People established, prima facie, thatdefense counsel was excluding jurors on the basis of gender, is supported by the record (see People v Grant, 128 AD3d1088, 1088 [2015]; People v McCoy, 210 AD2d 508, 509 [1994]), and therefore willnot be disturbed.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Pearsall, 171AD3d 1096, 1096 [2019]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to theopportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
[*2] The defendant's contentions regarding alleged prosecutorial misconduct duringsummation are unpreserved for appellate review (see CPL 470.05 [2]; People vTonge, 93 NY2d 838, 839-840 [1999]; People v Rivera, 130 AD3d 655, 656 [2015]). In any event, most ofthe challenged remarks either were fair comment on the evidence and the inferences to be drawntherefrom (see People v Gurdon,153 AD3d 1430, 1431 [2017]; People v Elder, 152 AD3d 787, 789 [2017]), or were responsive tocomments made by defense counsel during her summation (see People v Mairena, 160 AD3d 986, 988 [2018], affd 34NY3d 473 [2019]; People vKatzman, 161 AD3d 770, 771-772 [2018]). To the extent some of the remarks wereimproper, they were not so "flagrant or pervasive" as to have deprived the defendant of a fair trial(People v Mapp, 188 AD3d1260, 1261 [2020]).
The defendant contends that the order of protection issued at the time of sentencing failed tocredit him for jail-time served. Initially, we note that this issue is unpreserved for appellatereview as the defendant did not challenge the duration of the order of protection at sentencing, ormove to amend the order of protection anytime thereafter (see People v Nieves, 2 NY3d 310, 316-317 [2004]; People v Ramos, 164 AD3d 922,923 [2018]). Nevertheless, we reach this issue in the exercise of our interest of justicejurisdiction (see People v Chambers,177 AD3d 645, 646 [2019]; Peoplev Ramos, 164 AD3d 922, 923 [2018]). The order of protection did not credit thedefendant for time served. Accordingly, we vacate so much of the order of protection as directedthat it remain in effect until and including October 18, 2052, and remit the matter to the SupremeCourt, Kings County, for a new determination of the duration of the order of protection (seePeople v Chambers, 177 AD3d at 646; People v Gooding, 174 AD3d 642, 643 [2019]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The parties' remaining contentions are without merit. Chambers, J.P., Miller, Barros andChristopher, JJ., concur.