PEOPLE v. BROWN (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[4] ) and criminal possession of a weapon in the third degree (§ 265.02[4] ).   We reject defendant's contentions that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's contention, the inconsistencies in the testimony of the victim do not render that testimony incredible as a matter of law (see People v. Roberts, 231 A.D.2d 859, 648 N.Y.S.2d 418, lv. denied 89 N.Y.2d 1014, 658 N.Y.S.2d 253, 680 N.E.2d 627;  see also People v. Batista, 235 A.D.2d 631, 632, 652 N.Y.S.2d 645, lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 382, 682 N.E.2d 983).

 Defendant further contends that County Court abused its discretion by allowing the People to cross-examine him with respect to two prior convictions.   Defendant failed to object to the court's “ ‘ultimate’ Sandoval ruling” and thus failed to preserve his contention for our review (People v. Ponder, 19 A.D.3d 1041, 1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  see People v. O'Connor, 19 A.D.3d 1154, 1155, 795 N.Y.S.2d 917, lv. denied 5 N.Y.3d 831, 804 N.Y.S.2d 46, 837 N.E.2d 745).   In any event, defendant's contention lacks merit.   “[T]here are no per se rules requiring preclusion because of the age, nature and number of a defendant's prior crimes” (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472), and the court properly exercised its discretion in this case.

 We reject the contention of defendant that there was a Batson violation based on the prosecutor's exercise of peremptory challenges against three prospective African-American jurors.   Defendant failed to preserve his contention for our review with respect to one of the prospective jurors (see CPL 470.05[2] ) and, indeed, we note that defendant waived his contention with respect to that prospective juror when defense counsel noted that the Batson challenge did not apply to that prospective juror.   We conclude with respect to the remaining two prospective jurors that the court did not abuse its discretion in determining that the prosecutor's explanations for exercising those peremptory challenges were not pretexts for discrimination (see People v. Shongo, 288 A.D.2d 920, 733 N.Y.S.2d 667, lv. denied 97 N.Y.2d 733, 740 N.Y.S.2d 707, 767 N.E.2d 164;  People v. Diaz, 269 A.D.2d 766, 703 N.Y.S.2d 414, lv. denied 95 N.Y.2d 852, 714 N.Y.S.2d 3, 736 N.E.2d 864).

We reject the further contention of defendant that he was denied the right to effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant has failed to show that a pretrial motion to suppress evidence, if made, would have been successful (see People v. Peterson, 19 A.D.3d 1015, 796 N.Y.S.2d 796, lv. denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980;  People v. Ayala, 236 A.D.2d 802, 803, 654 N.Y.S.2d 59, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055), or that defense counsel otherwise failed to provide meaningful representation (see generally Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant failed to establish that his original attorney was aware that he had an actual conflict of interest during a pretrial suppression hearing, and thus there is no support for defendant's contention that the conflict hindered the attorney's representation of defendant (see generally People v. Harris, 99 N.Y.2d 202, 210-211, 753 N.Y.S.2d 437, 783 N.E.2d 502).   Similarly without merit is defendant's contention that the court abused its discretion in permitting the People to call a rebuttal witness (see generally People v. Harris, 57 N.Y.2d 335, 345-346, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803).   The sentence is not unduly harsh or severe.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: