Opinion
No. KA 07-00914.
November 14, 2008.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered March 27, 2007. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.
Before: Smith, J.P., Centra, Lunn, Fahey and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]), defendant contends that the People's alleged loss or destruction of a tape recorded conversation constituted a Rosario violation for which Supreme Court was required to impose sanctions. We reject that contention. Defendant "fail[ed] to make an unambiguous objection when [that] violation was first noted and . . . indicat[ed] to the . . . court through his equivocal statements that no remedy was desired" ( People v Rogelio, 79 NY2d 843, 844). Contrary to the further contention of defendant, there is no merit to his Batson challenge. "The prosecutor's single peremptory challenge to a black prospective juror did not establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination" ( People v Jones, 4 AD3d 796, 797, lv denied 2 NY3d 801 [internal quotation marks omitted]). We reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). "The jury was entitled to resolve issues of credibility in favor of the People . . ., and it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v Walek, 28 AD3d 1246, 1246, lv denied 7 NY3d 764).
We reject the further contention of defendant that he was denied effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147), as well as his challenge to the severity of the sentence. We have considered defendant's remaining contentions and conclude that they are without merit.