Opinion
05-03-2024
The PEOPLE of the State of New York, Respondent, v. Derrick J. SEDORE, Defendant-Appellant.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered April 25, 2019. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (three counts), burglary in the second degree, robbery in the first degree (two counts), kidnapping in the second degree, assault in the second degree, and grand larceny in the fourth degree. DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of three counts of burglary in the first degree (Penal Law § 140.30 [1], [2], [3]), two counts of robbery in the first degree (§ 160.15 [2], [3]), and one count each of burglary in the second degree (§ 140.25 [2]), kidnapping in the second degree (§ 135.20), assault in the second degree (§ 120.05 [2]), and grand larceny in the fourth degree (§ 155.30 [7]). We affirm.
[1] Defendant contends that County Court erred in denying his challenge for cause to a prospective juror. We reject that contention. The prospective juror’s statements did not demonstrate "a state of mind that is likely to preclude" rendering an impartial verdict (CPL 270.20 [1] [b]), or a " ‘preexisting opinion[ ] that might indicate bias’ " (People v. Patterson, 34 N.Y.3d 1112, 1113, 117 N.Y.S.3d 660, 140 N.E.3d 982 [2019], quoting People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001]). Thus, we agree with the People that the court "was not required to seek an assurance that [the prospective juror] could decide the case impartially" (People v. Williams, 184 A.D.3d 1125, 1126, 125 N.Y.S.3d 811 [4th Dept. 2020], affd 37 N.Y.3d 314, 156 N.Y.S.3d 129, 177 N.E.3d 1283 [2021] [internal quotation marks omitted]; see People v. Hall, 169 A.D.3d 1379, 1380, 92 N.Y.S.3d 504 [4th Dept. 2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 274, 124 N.E.3d 763 [2019] [internal quotation marks omitted]). Moreover, even if the prospective juror’s statements " ‘cast serious doubt on [her] ability to render an impartial verdict,’ " the record establishes that she gave an " ‘unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence’ " (People v. Wright [appeal No. 2], 104 A.D.3d 1327, 1328, 960 N.Y.S.2d 844 [4th Dept. 2013], lv denied 21 N.Y.3d 1012, 971 N.Y.S.2d 264, 993 N.E.2d 1287 [2013]).
[2] Defendant next contends that the prosecutor’s response to a Batson challenge was pretextual and thus, the court erred in summarily concluding that the prosecutor’s response was sufficient. Because defendant "failed to articulate to the court ‘any reason why he believed that the prosecutor’s explanation [was] pretextual,’ " he has failed to preserve that contention for our review (People v. Bodine, 283 A.D.2d 979, 979, 725 N.Y.S.2d 498 [4th Dept. 2001], lv denied 96 N.Y.2d 898, 730 N.Y.S.2d 795, 756 N.E.2d 83 [2001]; see People v. Linder, 170 A.D.3d 1555, 1558, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019]).
[3] Defendant further contends that he did not receive adequate notice of the persistent felony offender proceeding as provided in CPL 400.20 (4). Even assuming, arguendo, that the People failed to comply with that provision by not sending notice of the proceeding to defendant, we conclude that " ‘strict compliance with the statute was not required inasmuch as defendant received reasonable notice of the accusations against him and was provided an opportunity to be heard with respect to those accusations during the persistent felony offender proceeding’ " (People v. Williams, 163 A.D.3d 1422, 1424, 80 N.Y.S.3d 610 [4th Dept. 2018]; see People v. Gonzalez, 61 A.D.3d 1428, 1428-1429, 877 N.Y.S.2d 770 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009]).
The sentence is not unduly harsh or severe. Finally, we have considered defendant’s remaining contentions and conclude that none warrants modification or reversal of the judgment.