PEOPLE v. RICKARD (2006)

 Defendant appeals from a judgment convicting him following a jury trial of two counts of burglary in the third degree (Penal Law § 140.20) and one count each of criminal possession of stolen property in the third degree (§ 165.50) and criminal possession of stolen property in the fourth degree (§ 165.45).   Defendant failed to preserve for our review his contention that County Court erred in admitting hearsay testimony and other evidence of uncharged bad acts (see People v. McCullough, 8 A.D.3d 1122, 778 N.Y.S.2d 333, lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679;  People v. Parkinson, 268 A.D.2d 792, 794, 702 N.Y.S.2d 216, lv. denied 95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant preserved for our review his contention concerning only one of several allegedly improper comments made by the prosecutor on summation, and we conclude that any prejudice arising from that comment was dispelled when the court sustained defendant's objection thereto (see People v. Villarino, 184 A.D.2d 475, 585 N.Y.S.2d 422, lv. denied 80 N.Y.2d 977, 591 N.Y.S.2d 146, 605 N.E.2d 882).   We decline to exercise our power to review the remaining instances of alleged prosecutorial misconduct on summation as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 We reject the further contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to object to the allegedly improper hearsay testimony and other evidence of uncharged bad acts (see People v. Singh, 16 A.D.3d 974, 976-977, 792 N.Y.S.2d 241, lv. denied 5 N.Y.3d 769, 801 N.Y.S.2d 263, 834 N.E.2d 1273;  People v. Johnson, 303 A.D.2d 830, 834-837, 758 N.Y.S.2d 687, lv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294, 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485), as well as the alleged prosecutorial misconduct on summation (see People v. Taylor, 1 N.Y.3d 174, 176-178, 770 N.Y.S.2d 711, 802 N.E.2d 1109).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396) and, contrary to defendant's further contention, the verdict is not 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).   The court properly rejected defendant's Batson claim with respect to the exercise of peremptory challenges to exclude two African-American jurors.   The People met their burden of proffering a race-neutral reason for those challenges, and the record supports the court's determination that the proffered reason was not pretextual (see People v. Williams, 306 A.D.2d 691, 762 N.Y.S.2d 644, lv. denied 1 N.Y.3d 582, 775 N.Y.S.2d 798, 807 N.E.2d 911).   Finally, defendant failed to preserve for our review his contention that the court failed to make the proper findings with respect to his status as a second felony offender (see People v. Bonilla, 298 A.D.2d 871, 747 N.Y.S.2d 830, lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80, 100 N.Y.2d 536, 763 N.Y.S.2d 1, 793 N.E.2d 415), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: