Opinion
2015–03901 Ind. No. 3166/12
08-28-2019
The PEOPLE, etc., Respondent, v. Ruark MELENDEZ, Appellant.
Patrick Michael Megaro, Forest Hills, NY, for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Tina Grillo of counsel), for respondent.
Patrick Michael Megaro, Forest Hills, NY, for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Tina Grillo of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered April 30, 2015, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's denial of the defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ), as the defendant failed to satisfy his ultimate burden of demonstrating, under the third prong of the Batson analysis, that the prosecutor's race-neutral explanation for the questioned peremptory challenges was a pretext for racial discrimination (see People v. Hecker, 15 N.Y.3d 625, 663–664, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Smocum, 99 N.Y.2d 418, 422–423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Gonsalez, 144 A.D.3d 841, 842, 40 N.Y.S.3d 542 ; People v. Allen, 71 A.D.3d 778, 779, 896 N.Y.S.2d 448 ).
The defendant's contention that the Supreme Court improperly discharged a sworn juror and replaced her with an alternate is also without merit. The court conducted a reasonably thorough inquiry into the juror's unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour period set forth in CPL 270.35(2) (see People v. Jeanty, 94 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ). The defendant's claim regarding the constitutionality of the discharge of the juror is unpreserved for appellate review (see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 ; People v. Ballard, 51 A.D.3d 1034 1035–1036, 858 N.Y.S.2d 769 ) and, in any event, without merit (see People v. Jeanty, 94 N.Y.2d at 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ; People v. Ballard, 51 A.D.3d at 1036, 858 N.Y.S.2d 769 ).
There is no merit to the defendant's contention that certain of the Supreme Court's evidentiary rulings violated his right to present a defense. "[W]hile all relevant evidence is admissible unless its admission violates some exclusionary rule, evidence is relevant only if it tends to prove the existence or nonexistence of a material fact directly at issue in the case" ( People v. Robinson, 143 A.D.3d 744, 746, 38 N.Y.S.3d 601 ; see People v. Jin Cheng Lin, 26 N.Y.3d 701, 727, 27 N.Y.S.3d 439, 47 N.E.3d 718 ). Further, " ‘well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury’ " ( People v. Powell, 27 N.Y.3d 523, 530, 35 N.Y.S.3d 675, 55 N.E.3d 435, quoting Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 ; see People v. Robinson, 143 A.D.3d at 746, 38 N.Y.S.3d 601 ). Here, while the defendant complains of the refusal to admit certain photographs into evidence, such photographs were not relevant as they did not tend to prove the existence or nonexistence of a material fact directly at issue and any probative value was outweighed by the possible prejudicial impact on the jury. The defendant also argues that the court should have admitted photocopies of certain text messages, but the court's failure to admit these photocopies was not prejudicial to the defendant because these text messages were read in their entirety into the record by defense counsel and the jury was free to request a read back of the content of the messages. The defendant's contention that comments made by the prosecutor in summation were improper and deprived him of a fair trial is largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Morales, 171 A.D.3d 945, 947, 98 N.Y.S.3d 121 ; People v. Kaval, 154 A.D.3d 875, 876, 63 N.Y.S.3d 411 ) and, in any event, is without merit. The challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Morales, 171 A.D.3d at 947, 98 N.Y.S.3d 121 ), a fair response to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Morales, 171 A.D.3d at 947, 98 N.Y.S.3d 121 ), or not so egregious as to have deprived the defendant of a fair trial (see People v. Morales, 171 A.D.3d at 947, 98 N.Y.S.3d 121 ; People v. Wilson, 163 A.D.3d 881, 81 N.Y.S.3d 163 ).
The defendant's remaining contentions are without merit.
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.