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People v. Cosme

Supreme Court of New York, Second Department

October 30, 2013

The People of the State of New York, respondent,
v.
Jose Cosme, appellant. Ind. No. 2348/09

Patrick Michael Megaro, Uniondale, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Brooke E. Barnes of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered October 25, 2011, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied his Batson challenge (see Batson v Kentucky, 476 U.S. 79) to the prosecutor's peremptory strikes of two prospective jurors during the first round of jury selection. The defendant did not demonstrate circumstances supporting a prima facie showing that would establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see id. at 96-97; People v Childress, 81 N.Y.2d 263; People v Bolling, 79 N.Y.2d 317; People v Jenkins, 75 N.Y.2d 550).

The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness's testimony was "not true" because it contradicted the defendant's recollection of events (see People v Galloway, 54 N.Y.2d 396, 400; People v Lawrence, 4 A.D.3d 436, 437; People v Berrios, 298 A.D.2d 597, 597; People v Leuthner, 216 A.D.2d 327, 328; People v Simms, 130 A.D.2d 525, 525-526; People v Sepulveda, 105 A.D.2d 854, 857; People v Buehler, 104 A.D.2d 1045, 1045; People v Calderon, 88 A.D.2d 604, 604; People v Ochoa, 86 A.D.2d 637, 637; People v Santiago, 78 A.D.2d 666, 666; People v Yant, 75 A.D.2d 653, 653; People v Rodriguez, 62 A.D.2d 929, 929; People v Bryant, 60 A.D.2d 810, 811). We also agree with the defendant that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police (see People v De George, 73 N.Y.2d 614; People v Conyers, 52 N.Y.2d 454). However, under the facts of this case, the errors were harmless and did not deprive the defendant of a fair trial (see People v Crimmins, 36 N.Y.2d 230, 241-242). Indeed, with respect to the questions concerning the defendant's silence after being apprehended, the trial court alleviated any prejudice by sustaining defense counsel's objections to the two offending questions, striking the second question and answer from the record, and directing the jury to disregard the second question and answer.

The defendant's remaining contentions are without merit.

DILLON, J.P., DICKERSON, COHEN and HINDS-RADIX, JJ., concur.


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