Summary
holding petitioner "failed to preserve for appellate review his" delegation claims
Summary of this case from Marshall v. PerezOpinion
2015-09-16
The PEOPLE, etc., respondent, v. Tremayne MARSHALL, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Avshalom Yotam of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Avshalom Yotam of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered October 25, 2012, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendant's request to withdraw his peremptory challenge to a prospective juror ( cf. People v. Parrales, 105 A.D.3d 871, 872, 962 N.Y.S.2d 663). Contrary to the People's contention, the defendant sufficiently preserved this argument for appellate review ( seeCPL 470.05[2]; People v. Roberts, 215 A.D.2d 148, 148, 626 N.Y.S.2d 757). However, the error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant contends that the Supreme Court's improper denial of his request to withdraw his peremptory challenge is not subject to harmless error analysis, since the error deprived him of his constitutional right to a jury in whose selection he had a voice ( see People v. Anderson, 70 N.Y.2d 729, 730, 519 N.Y.S.2d 957, 514 N.E.2d 377). We disagree. While peremptory challenges “are a mainstay in a litigant's strategic arsenal,” they are “not a trial tool of constitutional magnitude” (People v. Luciano, 10 N.Y.3d 499, 502, 860 N.Y.S.2d 452, 890 N.E.2d 214; see People v. Hecker, 15 N.Y.3d 625, 662, 917 N.Y.S.2d 39, 942 N.E.2d 248). The right to exercise peremptory challenges “is protected by the Criminal Procedure Law, which provides that each party ‘must be allowed’ an equal number of peremptory challenges and that a court ‘must exclude’ any juror challenged” (People v. Luciano, 10 N.Y.3d at 502, 860 N.Y.S.2d 452, 890 N.E.2d 214, quoting CPL 270.25[1], [2]; see People v. Hecker, 15 N.Y.3d at 662, 917 N.Y.S.2d 39, 942 N.E.2d 248). Therefore, “the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error” (People v. Hecker, 15 N.Y.3d at 662, 917 N.Y.S.2d 39, 942 N.E.2d 248). However, there is no statutory right to withdraw a peremptory challenge. Further, the instant case does not involve a situation in which the People attempted to peremptorily challenge a juror who had been accepted by the defense in violation of CPL 270.15(2), inasmuch as the People did not object to the defendant's request to withdraw the peremptory challenge ( cf. People v. Quinones, 222 A.D.2d 208, 208–209, 635 N.Y.S.2d 5). Moreover, the defendant was not prejudiced by the loss of the peremptory challenge since, at the conclusion of jury selection, defense counsel had exercised only 9 of his 15 peremptory challenges ( cf. People v. Pereira, 220 A.D.2d 696, 696, 633 N.Y.S.2d 63). Accordingly, under the circumstances of this case, the error was harmless.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution since, viewing defense counsel's performance in totality, counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Fields, 109 A.D.3d 553, 554, 970 N.Y.S.2d 469). Moreover, the defendant was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The defendant failed to preserve for appellate review his remaining contentions that the Supreme Court discharged potential jurors based upon hardship without conducting a sufficient inquiry, and improperly delegated its duties to the jury clerk ( seeCPL 470.05[2]; People v. Jordan, 125 A.D.3d 787, 787, 3 N.Y.S.3d 127; People v. Johnson, 116 A.D.3d 883, 883, 983 N.Y.S.2d 447; People v. King, 110 A.D.3d 1005, 1005, 973 N.Y.S.2d 353; People v. Toussaint, 40 A.D.3d 1017, 1017–1018, 837 N.Y.S.2d 218; cf. People v. Roberts, 215 A.D.2d 148, 148, 626 N.Y.S.2d 757). In any event, those contentions are without merit ( see People v. Jordan, 125 A.D.3d at 787, 3 N.Y.S.3d 127; People v. Johnson, 116 A.D.3d at 883, 983 N.Y.S.2d 447; People v. King, 110 A.D.3d at 1005, 973 N.Y.S.2d 353).