PEOPLE v. FOWLER (2007)

 On appeal from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ), criminal use of a firearm in the first degree (§ 265.09[1][b] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ), defendant contends that there were two Batson violations based on the prosecutor's peremptory challenges to two prospective jurors.   Contrary to the contention of the People, we conclude that defendant preserved his contention for our review.   We further conclude, however, that the prosecutor offered nonpretextual explanations for exercising peremptory challenges with respect to the two prospective jurors.   The first challenged prospective juror stated that he has an incarcerated cousin who contends that he was wrongly convicted, thus providing the prosecutor with a nonpretextual explanation for challenging that prospective juror (see People v. Pacheco, 308 A.D.2d 403, 764 N.Y.S.2d 426;  People v. Issac, 265 A.D.2d 190, 696 N.Y.S.2d 142, lv. denied 94 N.Y.2d 904, 707 N.Y.S.2d 388, 728 N.E.2d 987;  see also People v. Cuthrell, 284 A.D.2d 982, 726 N.Y.S.2d 903).   The second challenged prospective juror stated that she had both good and bad experiences with police officers “[b]ecause [she was] a woman, because [she was] a Latino, [and] because [she had] an accent.”   The prosecutor could reasonably believe based on that statement that the prospective juror may have mistrusted police officers (see People v. Cunningham, 21 A.D.3d 746, 748, 800 N.Y.S.2d 550, lv. dismissed 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797;  cf. People v. Van Hoesen, 307 A.D.2d 376, 378, 761 N.Y.S.2d 404).

 Contrary to the further contention of defendant, we conclude that “the mistake of [defense] counsel with respect to [the] minimum sentence does not rise to the level of ineffective assistance of counsel” (People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330).   We further conclude that County Court properly admitted Molineux evidence concerning a prior altercation between defendant and an eyewitness to the shooting.   That evidence was relevant to establish defendant's intent, identity and motive in shooting at the eyewitness and a group of his friends, including the victim (see e.g. People v. Lee, 284 A.D.2d 412, 726 N.Y.S.2d 284, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 637, 758 N.E.2d 663;  People v. Wheeler, 257 A.D.2d 673, 685 N.Y.S.2d 94, lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517;  see generally People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735).

 As the People correctly concede, however, criminal possession of a weapon in the second degree is an inclusory concurrent count of criminal use of a firearm in the first degree and, “under the circumstances of this case [,] defendant could not have committed the crime of criminal use of a firearm without committing the crime of criminal possession of the same firearm” (People v. Luster, 148 A.D.2d 305, 306, 538 N.Y.S.2d 273, lv. denied 74 N.Y.2d 666, 543 N.Y.S.2d 409, 541 N.E.2d 438).   We therefore modify the judgment accordingly (see id.;   see also People v. Dinsio, 286 A.D.2d 517, 520, 729 N.Y.S.2d 208, lv. denied 97 N.Y.2d 703, 739 N.Y.S.2d 104, 765 N.E.2d 307, cert. denied 536 U.S. 942, 122 S.Ct. 2626, 2627, 153 L.Ed.2d 808).   The sentence on the remaining two counts is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count five of the indictment and as modified the judgment is affirmed.

MEMORANDUM: