Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Robbery, 1st Degree.
PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., CALLAHAN AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him after a jury trial of two counts of robbery in the first degree (Penal Law § 160.15), defendant contends that his conviction is against the weight of the evidence; that prosecutorial misconduct during summation deprived him of a fair trial; that the People improperly exercised two peremptory challenges in violation of Batson v. Kentucky ( 476 U.S. 79); that Supreme Court erred in denying his motion to suppress an allegedly suggestive out-of-court identification; and that his sentence is harsh and excessive. We disagree.
Defendant's conviction is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The People presented proof that defendant robbed the same restaurant on two separate occasions not more than four weeks apart. The robbery victims identified defendant as the perpetrator and testified that defendant displayed what appeared to be a handgun during each robbery ( see, People v. Baskerville, 60 N.Y.2d 374, 380-382), and another witness testified that defendant admitted to him that he had robbed the restaurant. We perceive no basis in the record to disturb the jury's resolution of credibility issues ( see, People v. Bleakley, supra, at 495; People v. Gruttola, 43 N.Y.2d 116, 122).
There is no merit to the contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation. Comments on summation "that might otherwise be impermissible are proper when made in fair response to statements made by the defense" ( People v. Maisonet, 172 A.D.2d 274, lv denied 78 N.Y.2d 969; see also, People v. Smith, 219 A.D.2d 794, lv denied 86 N.Y.2d 875). Several of the allegedly improper comments constituted a fair response to defense counsel's comments on summation regarding the credibility of a prosecution witness ( see, People v. Halm, 81 N.Y.2d 819, 821; People v. Dunbar, 213 A.D.2d 1000, lv denied 85 N.Y.2d 972). Defendant's contentions that the prosecutor misstated the burden of proof and led the jury to believe that defendant had made an out-of-court confession to law enforcement officials are devoid of merit.
Defendant's contention that the prosecutor exercised peremptory challenges in a discriminatory manner lacks merit. The prosecutor proffered sufficient race-neutral explanations for exercising his peremptory challenges to exclude two prospective black jurors ( see, Hernandez v. New York, 500 U.S. 352; People v. Allen, 86 N.Y.2d 101, 109).
Defendant further contends that the suppression court should have suppressed the out-of-court identification of defendant. The record fails to support defendant's contention that the pretrial identification procedure was unduly suggestive. In any event, any error in failing to suppress the out-of-court identification of defendant is harmless ( see, People v. Howard, 209 A.D.2d 1014, affd 87 N.Y.2d 940).
Finally, in light of defendant's extensive criminal history and the nature of the subject crimes, the court did not abuse its discretion in sentencing defendant as a second felony offender to concurrent terms of incarceration of 15 years.