PEOPLE v. McCAULEY (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ) and one count of criminal possession of a weapon in the fourth degree (§ 265.01 [4] ).   Supreme Court properly denied defendant's Batson motion.   The People provided race-neutral explanations for exercising peremptory challenges to the prospective jurors in question (see People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976, 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54;  People v. Linen, 5 A.D.3d 1022, 1022-1023, 773 N.Y.S.2d 330;  People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919), and defendant failed to meet his burden of establishing that those explanations were pretextual (see Harris, 1 A.D.3d at 882, 767 N.Y.S.2d 725;  People v. Welch, 298 A.D.2d 903, 747 N.Y.S.2d 843, lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91;  see generally People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   Defendant failed to preserve for our review his further contention that the court erred in failing to give a circumstantial evidence charge (see CPL 470.05[2];  People v. Wheeler, 284 A.D.2d 973, 726 N.Y.S.2d 889, lv. denied 96 N.Y.2d 909, 730 N.Y.S.2d 807, 756 N.E.2d 95;  People v. Congelosi, 266 A.D.2d 930, 931, 698 N.Y.S.2d 810, lv. denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985, 95 N.Y.2d 794, 711 N.Y.S.2d 162, 733 N.E.2d 234).   We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see Wheeler, 284 A.D.2d at 973-974, 726 N.Y.S.2d 889;   Congelosi, 266 A.D.2d at 931, 698 N.Y.S.2d 810).

 Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2];  People v. Jones, 13 A.D.3d 1192, 786 N.Y.S.2d 776, lv. denied 4 N.Y.3d 799, 795 N.Y.S.2d 175, 828 N.E.2d 91;  People v. Barlow, 8 A.D.3d 1027, 1028, 778 N.Y.S.2d 375, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572).   In any event, we conclude that the prosecutor's remarks constituted fair comment upon the evidence, to which there was no objection, that defendant was carrying a large sum of cash (see generally People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. White, 291 A.D.2d 842, 843, 737 N.Y.S.2d 181, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618).   In addition, we note that defense counsel's summation highlighted the issue of the cash in defendant's possession, and thus the prosecutor's remarks were a fair response to the summation of defense counsel (see People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893;  People v. Kelly, 309 A.D.2d 1149, 1150, 765 N.Y.S.2d 115, lv. denied 1 N.Y.3d 575, 775 N.Y.S.2d 791, 807 N.E.2d 904;  People v. Sinclair, 231 A.D.2d 926, 647 N.Y.S.2d 896).

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

MEMORANDUM: