PEOPLE v. WASHINGTON (2006)

 Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03 [2] ).   Supreme Court properly admitted into evidence the sworn statement of a witness who refused to testify at trial.   The People established by clear and convincing evidence at the Sirois hearing (see Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591) that misconduct by defendant or others acting at his behest caused that witness to be unavailable to testify at defendant's trial (see People v. Chandler, 30 A.D.3d 161, 815 N.Y.S.2d 567;  see generally People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817).   The court properly exercised its discretion in precluding defendant from introducing reputation testimony and collateral evidence purportedly bearing on the credibility of that witness (see generally People v. Bosier, 6 N.Y.3d 523, 528, 814 N.Y.S.2d 584, 847 N.E.2d 1158;  Chandler, 30 A.D.3d at 162, 815 N.Y.S.2d 567).   The court also properly refused to permit defendant to introduce into evidence the hearsay testimony of a police detective regarding descriptions of the shooter provided by two witnesses who did not testify (see generally People v. Huertas, 75 N.Y.2d 487, 492, 554 N.Y.S.2d 444, 553 N.E.2d 992).   Further, assuming that those descriptions constituted Brady material, we conclude that defendant had a meaningful opportunity to use that material and was thus not denied a fair trial by the timing of its delivery (see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  People v. Concepcion, 262 A.D.2d 1058, 692 N.Y.S.2d 877, lv. denied 94 N.Y.2d 821, 702 N.Y.S.2d 591, 724 N.E.2d 383).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and 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 challenge to the prosecutor's use of a peremptory challenge with respect to an African-American prospective juror.  “ ‘The court was in the best position to observe the demeanor of the prospective juror[ ] and the prosecutor,’ and its determination that the prosecutor's explanation was race-neutral and not pretextual is entitled to great deference” (People v. Lawrence, 23 A.D.3d 1039, 1039, 803 N.Y.S.2d 460, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380, quoting People v. Williams, 13 A.D.3d 1214, 1215, 786 N.Y.S.2d 684, lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330).   Finally, 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: