Opinion
10-18-2016
The PEOPLE of the State of New York, Respondent, v. Marcellus McMURRAY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, SAXE, FEINMAN, KAHN, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered February 11, 2015, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and attempted assault in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The court properly denied defendant's application made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court correctly determined that defendant did not establish a prima facie case of discrimination against black men, a cognizable group under Batson. Defendant's claim was based on the prosecutor's peremptory challenge to the first African–American male panelist, and defendant presented neither numerical nor nonnumerical evidence to raise an inference of intentional discrimination (see People v. Sweeper, 71 A.D.3d 439, 440, 897 N.Y.S.2d 41 [1st Dept.2010], affd. 15 N.Y.3d 925, 915 N.Y.S.2d 208, 940 N.E.2d 913 [2010] ; People v. McCloud, 50 A.D.3d 379, 381, 855 N.Y.S.2d 113 [1st Dept.2008], lv. denied 11 N.Y.3d 738, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The weapon possession conviction was supported by evidence from which the jury, which had the opportunity to examine the cane at issue, could have reasonably concluded that it constituted a dangerous instrument (see People v. Carter, 53 N.Y.2d 113, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981] ) because the manner in which defendant struck the victim rendered the cane readily capable of causing serious physical injury, including serious potential harm to body parts such as the head that were not actually struck. The attempted second-degree assault conviction was supported by evidence warranting the inference that defendant at least intended to cause ordinary physical injury, and came dangerously close to doing so.
Defendant's claim of ineffective assistance based on counsel's failure to request a lesser included offense charge is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of this ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant's remaining ineffective assistance claim, based on counsel's failure to object to a comment made by the prosecutor on summation, is unavailing because we do not find that comment improper, when viewed in context.
The court provided a meaningful response to a jury note. The jury specifically asked for the elements of the crime, and the court had no obligation to go beyond that specific request (see People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ). Although the court informed the jury that it could send another note if the court did not adequately answer its question, the jury did not do so.