Opinion
2015–06306 Ind.No. 1329/14
12-18-2019
The PEOPLE, etc., Respondent, v. Miles DAVIS, Appellant.
Janet E. Sabel, New York, N.Y. (David Crow and Patterson Belknap Webb & Tyler LLP [Daniel S. Ruzumna, Lachlan Campbell–Verduyn, and Christina Seda–Acosta ], of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jill A. Gross–Marks of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (David Crow and Patterson Belknap Webb & Tyler LLP [Daniel S. Ruzumna, Lachlan Campbell–Verduyn, and Christina Seda–Acosta ], of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jill A. Gross–Marks of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed. We find no basis to disturb the trial court's factual determination in denying the defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ). "[A] party asserting a claim under Batson ... should articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed" ( People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; see People v. Allen, 86 N.Y.2d 101, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ). On appeal, the defendant relies upon new arguments that were not raised before the trial court, and therefore, the record is not fully developed as it pertains to such issues (see People v. Allen, 86 N.Y.2d at 110–111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ).
In any event, those arguments are without merit. The prosecutor's race-neutral explanations for using a peremptory challenge against certain prospective black jurors are supported by the record, and the defendant "failed to carry his ultimate burden of demonstrating discrimination by showing that these reasons were pretextual" ( People v. Thompson, 45 A.D.3d 876, 877, 847 N.Y.S.2d 114 ). The trial court's assessment of the prosecutor's credibility is entitled to great deference on appeal (see People v. Chery, 127 A.D.3d 1227, 1227, 5 N.Y.S.3d 897 ). Because the trial court's determination is supported by the record, it will not be disturbed (see People v. Francis, 155 A.D.3d 1059, 1061, 66 N.Y.S.3d 29 ; People v. Norris, 98 A.D.3d 586, 586, 949 N.Y.S.2d 472 ).
The defendant's contention that the prosecutor made certain inappropriate comments during summation is unpreserved for appellate review, as the defendant did not object to a majority of the comments he now argues were improper, raised only general objections with respect to those comments to which he did object, did not request a curative instruction with respect to the objections that were sustained, and did not move for a mistrial after the trial court overruled his other objections (see CPL 470.05[2] ; People v. Rogers, 161 A.D.3d 1013, 1014, 77 N.Y.S.3d 431 ; People v. Elder, 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ; People v. Collins, 12 A.D.3d 33, 36, 784 N.Y.S.2d 489 ). In any event, the majority of the comments complained of were within "the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence" ( People v. Baez, 137 A.D.3d 805, 805, 27 N.Y.S.3d 161 ; see People v. Stewart, 51 A.D.3d 826, 827, 859 N.Y.S.2d 663 ). Certain isolated comments by the prosecutor were improper, including those where the prosecutor stated that in order to find the defendant not guilty, the jury would have to believe that the police officers who testified were lying, which suggested that the defendant bore the burden of proving that the People's witnesses were lying (see People v. Cantoni, 140 A.D.3d 782, 787, 34 N.Y.S.3d 454 ; see also People v. Levy, 202 A.D.2d 242, 245, 608 N.Y.S.2d 466 ), and those where the prosecutor made certain inflammatory references to the defendant's tattoos (see People v. Spence, 92 A.D.3d 905, 938 N.Y.S.2d 622 ). However, these comments "were either sufficiently addressed by the [trial court's] instructions to the jury or not so egregious as to have deprived the defendant of a fair trial" ( People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910 ; see People v. Baez, 137 A.D.3d at 806 ; People v. Scurry, 123 A.D.3d 949, 950, 996 N.Y.S.2d 732 ).
SCHEINKMAN, P.J., RIVERA, ROMAN and CHRISTOPHER, JJ., concur.