Opinion
2014-06-13
The PEOPLE of the State of New York, Respondent, v. Michael A. ROSS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1], [2] ), defendant contends that Supreme Court erred in denying his Batson challenge. The challenge was made with respect to an African–American male prospective juror who was peremptorily struck from the venire panel by the prosecutor. In response to the challenge, the prosecutor offered two race-neutral reasons for striking the prospective juror, and defendant did not contend that those reasons were pretextual. Defendant thus failed to preserve his contention for our review ( see People v. Jackson, 57 A.D.3d 1463, 1464, 869 N.Y.S.2d 824,lv. denied12 N.Y.3d 817, 881 N.Y.S.2d 25, 908 N.E.2d 933;People v. Cooley, 48 A.D.3d 1091, 1092, 851 N.Y.S.2d 771,lv. denied10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250).
In any event, by denying defendant's Batson challenge, the court “thereby implicitly determined” that the race-neutral explanations given by the prosecutor for striking the prospective juror were not pretextual ( People v. Parker, 304 A.D.2d 146, 156–157, 755 N.Y.S.2d 521,lv. denied100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488), and the court was in the best position to determine whether the prosecutor was being truthful ( see People v. Lawrence, 23 A.D.3d 1039, 1039, 803 N.Y.S.2d 460,lv. denied6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380; People v. Williams, 13 A.D.3d 1214, 1215, 786 N.Y.S.2d 684,lv. denied4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330). We note that the prosecutor struck Caucasian prospective jurors for the same reasons he claimed to have struck the African–American prospective juror in question. There is therefore no basis in the record for us to conclude that the prosecutor struck the prospective juror because of his race.
Defendant further contends that the court erred in failing to suppress statements he made during telephone calls that he initiated while in jail awaiting trial. According to defendant, his telephone calls should not have been recorded without an eavesdropping warrant. We reject that contention. “[A]n eavesdropping warrant is not required when one of the parties to the conversation consents to the eavesdropping” ( People v. Koonce, 111 A.D.3d 1277, 1279, 974 N.Y.S.2d 207;see People v. Lasher, 58 N.Y.2d 962, 963, 460 N.Y.S.2d 522, 447 N.E.2d 70;People v. Wood, 299 A.D.2d 739, 740–741, 751 N.Y.S.2d 106,lv. denied99 N.Y.2d 621, 757 N.Y.S.2d 833, 787 N.E.2d 1179) and, here, defendant “impliedly consented to the recording[s]” inasmuch as he was notified via a recorded message that telephone calls are subject to monitoring and recording ( Koonce, 111 A.D.3d at 1279, 974 N.Y.S.2d 207).
Finally, we reject defendant's challenges to the sufficiency and weight of the evidence. Defendant concedes that he twice fired his .22 caliber rifle after exchanging words with the victim, but he contends that he aimed toward the sky and intended only to scare the victim. The victim testified, however, that defendant fired six shots at him, one of which almost struck his head and another of which was deflected by the cell phone in his coat pocket, and the police found five shell casings in the area where the shooting occurred. Although the victim discarded his coat and cell phone while running away from defendant, and the police could not find either item, the victim had a welt on the left side of his abdomen where the cell phone had been located. Moreover, two eyewitnesses testified that defendant appeared to aim the gun directly at the victim. Although those witnesses are related to the victim, the “credibility of the witnesses was an issue for the jury to determine, and we perceive no basis for disturbing that determination” ( People v. Newman, 87 A.D.3d 1348, 1350, 929 N.Y.S.2d 827,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967;see People v. Shelton, 111 A.D.3d 1334, 1336, 974 N.Y.S.2d 224). In addition, defendant made an incriminating statement to the police after he had been arrested. When asked if he knew why he was at the police station, defendant said that he had “shot at some white boy.”
Viewing the above evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt’ ” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.