- October 22, 2019
E. Sabel, New York, NY (David Crow and Patterson Belknap Webb
& Tyler LLP [Daniel S. Ruzumna, Lachlan Campbell-Verduyn,
and Christina Seda-Acosta], of counsel), for appellant.
M. Ryan, Acting District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, and Jill A. Gross-Marks of
counsel), for respondent.
D. SCHEINKMAN, P.J. REINALDO E. RIVERA SHERI S. ROMAN LINDA
DECISION & ORDER
by defendant from a judgment of the Supreme Court, Queens
County (Joel L. Blumenfeld, J.), rendered May 27, 2015,
convicting him of criminal possession of a weapon in the
second degree and unlawful possession of marijuana, upon a
jury verdict, and imposing sentence.
that the judgment is affirmed.
no basis to disturb the trial court's factual
determination in denying the defendant's Batson
challenge (see Batson v. Kentucky, 476 U.S. 79).
"[A] party asserting a claim under Batson . . .
should articulate and develop all of the grounds supporting
the claim, both factual and legal, during the colloquy in
which the objection is raised and discussed" (People
v. Childress, 81 N.Y.2d 263, 268; see People v.
Allen, 86 N.Y.2d 101, 110). On appeal, the defendant
relies upon new arguments that were not raised before the
trial court, and therefore, the record is not fully developed
as it pertains to such issues (see People v. Allen,
86 N.Y.2d at 110-111).
event, those arguments are without merit. The
prosecutor's race-neutral explanations for using a
peremptory challenge against certain prospective black jurors
are supported by the record, and the defendant "failed
to carry his ultimate burden of demonstrating discrimination
by showing that these reasons were pretextual"
(People v. Thompson, 45 A.D.3d 876, 877). The trial
court's assessment of the prosecutor's credibility is
entitled to great deference on appeal (see People v.
Chery, 127 A.D.3d 1227, 1227). Because the trial
court's determination is supported by the record, it will
not be disturbed (see People v. Francis , 155 A.D.3d
1059, 1061; People v. Norris , 98 A.D.3d 586, 586).
defendant's contention that the prosecutor made certain
inappropriate comments during summation is unpreserved for
appellate review, as the defendant did not object to a
majority of the comments he now argues were improper, raised
only general objections with respect to those comments to
which he did object, did not request a curative instruction
with respect to the objections that were sustained, and did
not move for a mistrial after the trial court overruled his
other objections (see CPL 470.05; People v.
Rogers,161 A.D.3d 1013, 1014; People v. Elder,152 A.D.3d 787, 789; People v. Collins, 12 A.D.3d
33, 36). In any event, the majority of the comments
complained of were within "the broad bounds of
rhetorical comment permissible in closing arguments,
constituted a fair response to arguments made by defense
counsel in summation, or constituted fair comment on the
evidence" (People v. Baez,137 A.D.3d 805, 805;
see People v. Stewart,51 A.D.3d 826, 827). Certain
isolated comments by the prosecutor were improper, including
those where the prosecutor stated that in order to find the
defendant guilty, the jury would have to believe that the
police officers who testified were lying, which suggested
that the defendant bore the burden of proving that the
People's witnesses were lying (see People v.
Cantoni,140 A.D.3d 782, 787; see also People v.
Levy,202 A.D.2d 242, 245), and those where the
prosecutor made certain inflammatory references to the