PEOPLE v. JONES (2001)

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered May 21, 1998, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 21 years to life, 12 1/212 to 25 years (two terms) and 7 1/212 to 15 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   The credible evidence clearly established the elements of the crimes charged and disproved defendant's justification defense.   Where defendant, the initial aggressor, obtained a gun, followed his intended victim into a small, crowded grocery store and instigated a gunfight, he was criminally liable for the death of one bystander and serious injuries to a second bystander, regardless of which gunman fired first or whose bullets hit the victims (see, People v. Russell, 91 N.Y.2d 280, 670 N.Y.S.2d 166, 693 N.E.2d 193).

The court properly denied defendant's application made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   The record supports the trial court's determination that defendant did not make a prima facie showing of intentional discrimination in the prosecution's exercise of its peremptory challenges (see, People v. Jenkins, 84 N.Y.2d 1001, 622 N.Y.S.2d 509, 646 N.E.2d 811;  People v. Childress, 81 N.Y.2d 263, 267, 598 N.Y.S.2d 146, 614 N.E.2d 709).

 The challenged portions of the prosecutor's summation were generally responsive to the defense summation and fair comment on the evidence, and did not deprive defendant of a fair trial (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

We have considered the contentions raised in defendant's pro se supplemental brief and find them to be without merit.