Opinion
04-12-2017
The PEOPLE, etc., respondent, v. Irineo JIMENEZ, appellant.
Neal D. Futerfas, White Plains, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Neal D. Futerfas, White Plains, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered May 1, 2014, convicting him of assault in the second degree, criminal possession of a weapon in the fourth degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions regarding the prosecutor's exercise of peremptory challenges are unpreserved for appellate review (see CPL 470.05[2] ; People v. Smith, 81 N.Y.2d 875, 876, 597 N.Y.S.2d 633, 613 N.E.2d 539 ; People v. Anderson, 142 A.D.3d 509, 509, 35 N.Y.S.3d 919 ; People v. Wallace, 128 A.D.3d 866, 868, 7 N.Y.S.3d 610 ; People v. Hunter, 16 A.D.3d 187, 188, 791 N.Y.S.2d 41 ; People v. Fuller, 302 A.D.2d 405, 753 N.Y.S.2d 902 ). In any event, the defendant failed to make a prima facie showing of purposeful exclusion sufficient to raise an inference of discrimination (see People v. Hecker, 15 N.Y.3d 625, 655, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Brown, 97 N.Y.2d 500, 508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 ; People v. Childress, 81 N.Y.2d 263, 267–268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136 ; People v. Anderson, 142 A.D.3d at 509, 35 N.Y.S.3d 919).
The defendant's contention that he was deprived of a fair trial because of certain remarks made by the prosecutor during summation is unpreserved for appellate review (see People v. Rivera, 73 N.Y.2d 941, 942, 540 N.Y.S.2d 233, 537 N.E.2d 618 ; People v. Ford, 69 N.Y.2d 775, 776, 513 N.Y.S.2d 106, 505 N.E.2d 615 ; People v. Nuccie, 57 N.Y.2d 818, 819, 455 N.Y.S.2d 593, 441 N.E.2d 1111 ; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276 ; People v. Eugene, 27 A.D.3d 480, 481, 812 N.Y.S.2d 578 ; People v. Hudgins, 20 A.D.3d 489, 490, 797 N.Y.S.2d 760 ). In any event, to the extent that some of the prosecutor's remarks were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Moore, 142 A.D.3d 1024, 37 N.Y.S.3d 158 ; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146 ).
Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.