PEOPLE v. JOHNSON (2007)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Defendant contends that the murder conviction is not supported by legally sufficient evidence because he was intoxicated at the time of the incident and the People failed to establish that he formed the specific intent to commit murder.   Defendant made only a general motion to dismiss and thus failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the evidence, viewed in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction (see People v. DeJesus, 16 A.D.3d 1112, 1112-1113, 790 N.Y.S.2d 900, lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that the verdict is not against the weight of the evidence (see People v. Wallace, 217 A.D.2d 918, 630 N.Y.S.2d 439, lv. denied 86 N.Y.2d 847, 634 N.Y.S.2d 457, 658 N.E.2d 235;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Contrary to the contention of defendant, County Court did not err in denying his Batson challenge.   The court properly determined that the prosecutor's explanations for exercising peremptory challenges with respect to two prospective jurors were race-neutral, and defendant failed to meet his ultimate burden of showing that those explanations were pretextual (see People v. Johnson, 38 A.D.3d 1327, 833 N.Y.S.2d 338, lv. denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201;  People v. Scott, 32 A.D.3d 1178, 1180, 821 N.Y.S.2d 339, lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627;  see generally People v. Smocum, 99 N.Y.2d 418, 422-423, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   The court also properly refused to suppress the red sweatshirt that defendant was allegedly wearing at the time of the murder.   The police had received a description of defendant, including the clothing he was wearing, and they observed the sweatshirt in plain view when they went to defendant's apartment (see People v. Stein, 306 A.D.2d 943, 762 N.Y.S.2d 201, lv. denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359, 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910;  see also People v. Thomas, 259 A.D.2d 997, 997-998, 688 N.Y.S.2d 305, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 66, 716 N.E.2d 1111, cert. denied 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421;  see generally People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298).   The sentence is not unduly harsh or severe.

Contrary to the contention of defendant in his main brief and his pro se supplemental brief, he received effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We reject the further contention of defendant in his pro se supplemental brief that the court abused its discretion in failing, sua sponte, to order a competency hearing (see People v. Tortorici, 92 N.Y.2d 757, 765-766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  People v. Taylor, 13 A.D.3d 1168, 787 N.Y.S.2d 539, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684;  People v. Mauricio, 8 A.D.3d 1089, 778 N.Y.S.2d 400, lv. denied 3 N.Y.3d 678, 784 N.Y.S.2d 16, 817 N.E.2d 834).   There is no indication in the record that defendant was unable to understand the proceedings or to assist in his defense (see People v. Monk, 29 A.D.3d 605, 815 N.Y.S.2d 130;  Taylor, 13 A.D.3d at 1169, 787 N.Y.S.2d 539).   We have reviewed the remaining contentions raised in the pro se supplemental brief 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: