Opinion
738 KA 13-00827
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Vincent TORRES, Defendant–Appellant.
J. Scott Porter, Seneca Falls, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
J. Scott Porter, Seneca Falls, for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
Opinion MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2 ] ), two counts of attempted sodomy in the first degree (§ 110.00, former § 130.50 [1] ), and one count each of sodomy in the first degree (former § 130.50[1] ) and sexual abuse in the first degree (§ 130.65[1] ). We reject defendant's contention that County Court erred in denying his Batson challenge. The court properly determined that the prosecutor provided a race-neutral explanation for excluding the prospective juror (see People v. Tucker, 22 A.D.3d 353, 353–354, 802 N.Y.S.2d 153, lv. denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 ; People v. Williams, 13 A.D.3d 1214, 1214–1215, 786 N.Y.S.2d 684, lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 ), and “defendant failed to meet [his] ‘ultimate burden of persuading the court’ that the People's race-neutral reasons for exercising a peremptory challenge with respect to an African–American juror were pretextual” (People v. Johnson, 38 A.D.3d 1327, 1328, 833 N.Y.S.2d 338, lv. denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201, quoting People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). Defendant's further contention that the court erred in sua sponte dismissing a hearing-impaired prospective juror is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant failed to preserve for our review his contention that his conviction of one of the two counts of attempted sodomy in the first degree is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, we reject that contention inasmuch as the evidence is legally sufficient to establish that defendant's “actions came within dangerous proximity” of committing deviate sexual intercourse (People v. Hamilton, 256 A.D.2d 922, 923, 682 N.Y.S.2d 276, lv. denied 93 N.Y.2d 874, 689 N.Y.S.2d 436, 711 N.E.2d 650 ; see Penal Law former §§ 130.00[2], 130.50). We reject defendant's contention that the court was required to direct that certain sentences run concurrently rather than consecutively pursuant to Penal Law § 70.25(2). The victim's testimony established that, although part of a continuous course of activity, the acts were separate and distinct (see People v. Bailey, 17 A.D.3d 1022, 1023, 794 N.Y.S.2d 223, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155 ). Finally, the sentence, as reduced by operation of law (see § 70.30[1][e][vi] ), is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.