W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove and Solomon Neubort of counsel), for respondent.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Marrus, J.), rendered June 20, 2013, convicting him
of murder in the second degree and burglary in the first
degree, upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
approximately 2:20 a.m. on December 12, 2011, Police Officer
Peter Figoski was shot in the face when he and his partner
responded as backup to a call to the 911 emergency number of
a burglary in progress at a house in Brooklyn. The officer
was rushed to the hospital, where he died shortly thereafter.
Five people were arrested and indicted in connection with the
burglary and shooting: Lamont Pride, the alleged shooter, as
well as the defendant and his alleged accomplices in the
burglary, Nelson Morales, Ariel Tejada, and Michael Velez.
Following a jury trial, the defendant was convicted of murder
in the second degree (Penal Law § 125.25) and
burglary in the first degree (Penal Law § 140.30).
defendant's contention that the Supreme Court abdicated
its judicial function by allowing prospective jurors who
concluded that they could not be fair and impartial to opt
out of serving on the jury without further inquiry is
unpreserved for appellate review (see CPL 470.05;
People v King, 27 N.Y.3d 147, 157; People v
Cunningham, 119 A.D.3d 601, 601; People v
McGhee, 4 A.D.3d 485, 485; People v Boozer, 298
A.D.2d 261), and, in any event, without merit.
Supreme Court properly granted the People's reverse-
Batson application (see Batson v Kentucky,
476 U.S. 79) with respect to two prospective jurors (see
People v Bell, 126 A.D.3d 718, 720; People v
Fogel, 73 A.D.3d 803, 804; People v Clarke, 64
A.D.3d 612, 612). The court's determination that the
facially race-neutral reasons given for the defendant's
peremptory challenges to those jurors were pretextual is
entitled to great deference on appeal and will not be
disturbed where, as here, the determination is supported by
the record (see People v Occhione, 94 A.D.3d 1021,
1022; People v Fogel, 73 A.D.3d 803, 803-804).
is no merit to the defendant's contentions that his
rights to confrontation, due process, and a fair trial were
violated when the Supreme Court revised its ruling to allow
into evidence portions of the defendant's videotaped
statement to law enforcement officials that contained
out-of-court statements made by an assistant district
attorney that certain codefendants had implicated the
defendant in the crimes. The defense counsel opened the door
to the admission of those statements in his opening statement
(see People v Reid, 19 N.Y.3d 382, 384-385;
People v Bryant, 39 A.D.3d 768, 768; People v
Gladden, 298 A.D.2d 462, 463; People v Simpson,
256 A.D.2d 205, 206). Moreover, the statements were not
received for their truth, but to explain why the defendant
confessed to the police when he did and to rebut the
defense's contention that the defendant's confession
was coercively derived (see People v Reynoso, 2
N.Y.3d 820; People v Bryant, 39 A.D.3d at 768;
People v Ewell, 12 A.D.3d 616, 617; People v
Perez, 9 A.D.3d 376, 377). Further, the jury was
pointedly instructed by the court that it was not to consider
any of those statements as evidence against the defendant,
and the jury is presumed to have followed such admonition
(see People v Davis, 58 N.Y.2d 1102, 1104).
Supreme Court's charge to the jury concerning the
voluntariness of the defendant's statement to the police
accurately stated the law, and the court did not
improvidently exercise its discretion in declining to give
the jury an expanded charge (see People v Dunlap, 51
A.D.3d 943, 944).
sentence imposed on the conviction of burglary in the first
degree was not excessive (see ...