Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Samuel Carl SIMMONS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal sexual act in the first degree (Penal Law § 130.50[1] ), and one count each of rape in the first degree (§ 130.35[1] ) and sexual abuse in the first degree (§ 130.65[1] ). Defendant failed to preserve for our review his contention that the prosecutor's reason for striking a prospective juror was pretextual, “having failed to raise before [Supreme Court] the specific claim he now raises on appeal” ( People v. Ali, 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277,lv. denied18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128;see People v. Jones, 284 A.D.2d 46, 48, 728 N.Y.S.2d 417,affd.99 N.Y.2d 264, 755 N.Y.S.2d 43, 784 N.E.2d 1152;People v. Holloway, 71 A.D.3d 1486, 1486–1487, 897 N.Y.S.2d 373,lv. denied15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056). In any event, defendant failed to meet his burden of establishing, with respect to the third step of the Batson analysis, that the People engaged in the discriminatory use of peremptory challenges ( see Batson v. Kentucky, 476 U.S. 79, 94–98, 106 S.Ct. 1712, 90 L.Ed.2d 69;People v. Hecker, 15 N.Y.3d 625, 634–635, 917 N.Y.S.2d 39, 942 N.E.2d 248,cert. denied––– U.S. ––––, 131 S.Ct. 2117, 179 L.Ed.2d 911). “Specifically, defense counsel did not compare the challenged juror [ ] to similarly-situated unchallenged prospective jurors, point to factors in the challenged juror['s] background that made [her] likely to be pro-prosecution, or enunciate any factor that suggested that the prosecutor exercised the challenge[ ] due to the prospective juror['s]” race ( People v. MacShane, 11 N.Y.3d 841, 842, 872 N.Y.S.2d 695, 901 N.E.2d 186;see People v. Donahue, 81 A.D.3d 1348, 1350, 916 N.Y.S.2d 402,lv. denied16 N.Y.3d 894, 926 N.Y.S.2d 30, 949 N.E.2d 978).
Defendant further contends that the court was required to excuse, sua sponte, a prospective juror who did not unequivocally state that he could be impartial. “By failing to raise that challenge in the trial court, however, defendant failed to preserve it for our review” ( People v. Stepney, 93 A.D.3d 1297, 1297–1298, 940 N.Y.S.2d 752,lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218). In any event, “[e]ven assuming, arguendo, that the court erred in [refusing to excuse, sua sponte, the prospective juror] for cause, we conclude that the error does not require reversal because defendant had not exhausted his peremptory challenges and did not peremptorily challenge that prospective juror” ( People v. Arguinzoni, 48 A.D.3d 1239, 1241, 852 N.Y.S.2d 546,lv. denied10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248;seeCPL 270.20[2]; People v. Irvin, 111 A.D.3d 1294, 1295, 974 N.Y.S.2d 214;People v. Brown, 101 A.D.3d 1627, 1628, 957 N.Y.S.2d 520). Defendant also contends that he was denied effective assistance of counsel because his attorney failed to exercise a for-cause or peremptory challenge with respect to that prospective juror. Defendant, however, has not met “his burden of showing the absence of a legitimate explanation for th[at] perceived error” ( People v. Barboni, 21 N.Y.3d 393, 407, 971 N.Y.S.2d 729, 994 N.E.2d 820;see People v. Reed, 115 A.D.3d 1334, 1336–1337, 982 N.Y.S.2d 670;Irvin, 111 A.D.3d at 1296, 974 N.Y.S.2d 214;Stepney, 93 A.D.3d at 1298, 940 N.Y.S.2d 752).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.