Opinion
2012-12-5
The PEOPLE, etc., respondent, v. Wayne SALTON, appellant.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered April 24, 2007, convicting him of robbery in the first degree (four counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's Batson application ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied, as he failed to make the requisite prima facie showing of discrimination ( see People v. Brown, 97 N.Y.2d 500, 743 N.Y.S.2d 374, 769 N.E.2d 1266;People v. Jenkins, 84 N.Y.2d 1001, 622 N.Y.S.2d 509, 646 N.E.2d 811;People v. Fryar, 29 A.D.3d 919, 814 N.Y.S.2d 755). In the absence of a record demonstrating adequate circumstances supporting a prima facie case, “the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination” ( People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136;see People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709).
The Supreme Court also properly determined that the explanation proffered by defense counsel when the prosecution made a reverse Batson – Kern challenge ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235,cert. denied498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50) was a mere pretext offered in an attempt to conceal a discriminatory intent to exclude male prospective jurors. Accordingly, the challenged juror was properly seated.
The defendant's contention that various comments made by the prosecutor during summation were improper and deprived him of a fair trial is without merit. The challenged remarks were either within the bounds of permissible rhetorical comment, fair response to arguments and issues raised by the defense, fair comment on the evidence, or cured by the trial court's curative instruction to the jury ( see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564).
The defendant failed to preserve for appellate review his contention that the police lacked probable cause to arrest him ( seeCPL 470.05[2]; People v. Tatum, 39 A.D.3d 571, 835 N.Y.S.2d 217;People v. Frazier, 171 A.D.2d 809, 567 N.Y.S.2d 611). In any event, this contention is without merit ( see People v. Chandler, 94 A.D.3d 1155, 941 N.Y.S.2d 346).
The defendant also failed to preserve for appellate review his contention that an adverse inference charge was an adequate remedy for the loss of a videotape and certain photographs ( seeCPL 470.05[2]; People v. Williams, 64 A.D.3d 734, 883 N.Y.S.2d 566,affd.16 N.Y.3d 480, 922 N.Y.S.2d 239, 947 N.E.2d 130;People v. Castillo, 34 A.D.3d 221, 222, 823 N.Y.S.2d 142). In any event, the trial court providently exercised its discretion in determining that an adverse inference charge was the appropriate sanction for the loss of the evidence ( see People v. Kelly, 62 N.Y.2d 516, 520–521, 478 N.Y.S.2d 834, 467 N.E.2d 498;People v. Batista, 92 A.D.3d 793, 938 N.Y.S.2d 479).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.