Opinion
2011-12-6
The PEOPLE, etc., respondent, v. Dwayne ERSKINE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Christine V. Sama of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Christine V. Sama of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered December 18, 2008, convicting him of murder in the second degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court erred in disallowing his peremptory challenges to two prospective white jurors because he provided sufficient race-neutral explanations for challenging them ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50). Defense counsel's proffered explanation for challenging one of the two jurors was that she “simply didn't like [him],” had not “ask[ed him] anything, didn't get a feel for him, and [had] confirmed with [her] client and he also did not like [him].” This explanation amounted, essentially, to no reason at all ( see People v. Carillo, 9 A.D.3d 333, 780 N.Y.S.2d 143; People v. Padgett, 303 A.D.2d 524, 756 N.Y.S.2d 620; People v. Smith, 251 A.D.2d 355, 673 N.Y.S.2d 716; People v. Stewart, 238 A.D.2d 361, 656 N.Y.S.2d 304). Defense counsel's challenge to the second juror was based on counsel's purportedly mistaken belief that he was a retired police officer. That juror, however, clearly stated during voir dire that he was a retired sanitation worker, and the Supreme Court properly determined that defense counsel's proffered explanation was not genuine ( see Miller–El v. Cockrell, 537 U.S. 322, 338–339, 123 S.Ct. 1029, 154 L.Ed.2d 931; see also Miller–El v. Dretke, 545 U.S. 231, 244, 125 S.Ct. 2317, 162 L.Ed.2d 196; People v. McIndoe, 277 A.D.2d 252, 715 N.Y.S.2d 734; cf. People v. Lebron, 293 A.D.2d 689, 742 N.Y.S.2d 312). Although the Supreme Court did not use the word “pretext,” the finding of pretext can be reasonably inferred from the Supreme Court's language in disallowing the defendant's challenges to the two prospective jurors ( see People v. Payne, 88 N.Y.2d 172, 185, 643 N.Y.S.2d 949, 666 N.E.2d 542; People v. Padgett, 303 A.D.2d 524, 756 N.Y.S.2d 620; People v. Stewart, 238 A.D.2d 361, 656 N.Y.S.2d 304). Thus, the Supreme Court properly disallowed the defendant's peremptory challenges.
The defendant's contentions that he was deprived of due process and a fair trial by the elicitation of certain testimony from the victims' mothers and by certain remarks made by the prosecutor during summation are unpreserved for appellate review. The defendant failed to object to the introduction of the challenged evidence ( see CPL 470.05[2]; People v. Laigo, 70 A.D.3d 970, 897 N.Y.S.2d 447; People v. Miller, 59 A.D.3d 463, 873 N.Y.S.2d 154), or to the challenged remarks ( see CPL 470.05[2]; People v. Lopez, 69 A.D.3d 958, 892 N.Y.S.2d 787; People v. Friel, 53 A.D.3d 667, 862 N.Y.S.2d 105; People v. Carrieri, 49 A.D.3d 660, 854 N.Y.S.2d 427). In any event, the challenged remarks constituted fair comment on the evidence ( see People v. Halm, 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281; People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), and, to the extent that some of the testimony may have been improper, the error in admitting such evidence was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that it contributed to his conviction ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Miller, 59 A.D.3d 463, 873 N.Y.S.2d 154).
The defendant's contention that trial counsel's failure to preserve certain claims for appellate review constituted ineffective assistance of counsel is without merit ( see People v. Greenlee, 70 A.D.3d 966, 897 N.Y.S.2d 132; People v. Taberas, 60 A.D.3d 791, 793, 875 N.Y.S.2d 172; People v. Acevedo, 44 A.D.3d 168, 841 N.Y.S.2d 55; see also People v. Friel, 53 A.D.3d 667, 862 N.Y.S.2d 105; People v. Rose, 47 A.D.3d 848, 849 N.Y.S.2d 158).