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People v. Collins

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
VINCENT COLLINS, JR., DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered February 7, 2007. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree (two counts), assault in the third degree (two counts), menacing in the second degree, endangering the welfare of a child and tampering with a witness in the fourth degree.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, 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, inter alia, of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). The jury was entitled to credit the testimony of the victim that defendant threatened her with a hacksaw and a steak knife and to reject the theory of the defense that those allegations were untrue and manufactured by the victim's father (see generally People v Kelly, 34 AD3d 1341, lv denied 8 NY3d 847). Defendant failed to preserve for our review his contention that Supreme Court did not follow the requisite three-step analysis when he raised a Batson challenge (see People v Robinson, 1 AD3d 985, lv denied 1 NY3d 633, 2 NY3d 805), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant's further contention that the court erred in determining that the prosecutor's explanation for exercising the peremptory challenge with respect to the prospective juror in question was race-neutral and not pretextual (see People v Lawrence, 23 AD3d 1039, lv denied 6 NY3d 835). Finally, the sentence is not unduly harsh or severe.

20090605

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