NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 4, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
BRUCE SWEEPER, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at hearing; William A. Wetzel, J. at jury trial and sentence), rendered August 4, 2008, convicting defendant of robbery in the first degree and petit larceny, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Nardelli, Catterson, DeGrasse, Manzanet-Daniels, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility. The credible evidence established that defendant displayed what appeared to be a firearm.
The court's excusal of a prospective juror was, in essence, a sua sponte excusal for cause. This determination was a proper exercise of discretion that was supported by the panelist's responses, viewed as a whole (see People v Velez, 223 AD2d 414 , lv denied 88 NY2d 855 ).
The court properly denied defendant's application pursuant to Batson v Kentucky (476 US 79 ). Since defendant did not produce evidence sufficient to permit the court to draw an inference of discrimination (see Johnson v California, 545 US 162, 170 ), he did not establish a prima facie case. Even though a prima facie showing "may be made based on the peremptory challenge of a single juror that gives rise to an inference of discrimination" (People v Smocum, 99 NY2d 418, 422 ), and while the use of peremptories to exclude all or nearly all the members of a cognizable group normally raises such an inference (see e.g. People v Hawthorne, 80 NY2d 873 ), here the numbers were too small, absent any other evidence, to infer discrimination rather than happenstance (see e.g. People v McCloud, 50 AD3d 379 , lv denied 11 NY3d 738 ; People v Contreras, 194 AD2d 685 , lv denied 82 NY2d 716 ; compare Miller-El v Cockrell, 537 US 322, 342 ). Indeed, it was defense counsel who observed, "We have a very small pool of African-American females on the [panel], so I don't know if I can say there is a pattern. . ."
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record (see People v Rivera, 71 NY2d 705, 709 ; People v Love, 57 NY2d 998 ). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 ; see also Strickland v Washington, 466 US 668 ).
We have considered and rejected defendant's pro se suppression claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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