PEOPLE v. PARSONS (2004)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ), criminal possession of a weapon in the second degree (§ 265.03[2] ) and criminal possession of a weapon in the third degree (§ 265.02[4] ).   We reject defendant's contention that the prosecutor committed a Batson violation.   The prosecutor provided race-neutral reasons for exercising peremptory challenges with respect to two African-American prospective jurors, and County Court properly determined that those stated reasons were not pretextual (see People v. Smocum, 99 N.Y.2d 418, 420, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   We further conclude that the court properly admitted as an excited utterance the testimony of a police officer that the victim named defendant as the shooter (see People v. Cotto, 92 N.Y.2d 68, 78-79, 677 N.Y.S.2d 35, 699 N.E.2d 394).   The victim had been shot several times and was in obvious pain, and “[i]t is this extraordinary stress that prevented [the victim] from engaging in reflection and gives his statements the necessary indicia of reliability” (id. at 79, 677 N.Y.S.2d 35, 699 N.E.2d 394;  see generally People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328).   In any event, there were four additional eyewitnesses who identified defendant as the shooter, and thus any error in admitting the officer's testimony is harmless (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  cf. People v. Crombleholme, 8 A.D.3d 1068, 778 N.Y.S.2d 256).

 Additionally, because defense counsel elicited the fact that an eyewitness was the subject of a material witness warrant, the court did not err in permitting the prosecutor to elicit testimony concerning the underlying reason for the warrant (see People v. Howard, 193 A.D.2d 620, 621, 597 N.Y.S.2d 439, lv. denied 81 N.Y.2d 1074, 601 N.Y.S.2d 593, 594, 619 N.E.2d 671, 672).   We further conclude that the court did not err in denying defendant's motion to dismiss based on the failure of the prosecutor to disclose that an eyewitness was in custody as a juvenile delinquent.   A juvenile delinquency adjudication in Family Court is not considered Brady material by this Court (see People v. Bennett, 273 A.D.2d 914, 709 N.Y.S.2d 773, lv. denied 95 N.Y.2d 932, 721 N.Y.S.2d 608, 744 N.E.2d 144).   In any event, “[e]ven assuming that the prosecutor had an obligation to disclose the adjudication prior to trial on the ground that it constitutes Brady material ․, we note that ․ defendant had a meaningful opportunity” to cross-examine the eyewitness with respect to the charges underlying that adjudication (id. at 914, 709 N.Y.S.2d 773).

We reject the further contentions of defendant that reversal is required based on alleged prosecutorial misconduct (see generally People v. Mott, 94 A.D.2d 415, 418-419, 465 N.Y.S.2d 307) and that the evidence is legally insufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although defendant presented alibi witnesses, four eyewitnesses to the shooting testified for the People that defendant shot the victim multiple times, at short range.   Also contrary to defendant's contention, the sentence is not unduly harsh or severe.

 We further conclude that defendant was not denied his right to effective assistance of counsel at the time of the grand jury proceeding on the ground that defense counsel allegedly failed to effectuate defendant's right to testify before the grand jury (see People v. Mejias, 293 A.D.2d 819, 820, 742 N.Y.S.2d 129, lv. denied 98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7).   We also conclude that defendant waived his right to be present at sidebar conferences during jury selection.   The record establishes that defendant was informed of his right to be present at all such conferences and that defense counsel waived that right in defendant's presence, in open court (see People v. Lawrence, 1 A.D.3d 625, 626, 766 N.Y.S.2d 261, lv. denied 1 N.Y.3d 630, 777 N.Y.S.2d 28, 808 N.E.2d 1287).   The record further establishes that defendant failed to object to his absence at any sidebar conferences (see People v. Keen, 94 N.Y.2d 533, 538-539, 707 N.Y.S.2d 380, 728 N.E.2d 979;  Lawrence, 1 A.D.3d at 626, 766 N.Y.S.2d 261).   We have reviewed 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: