PEOPLE v. BARROW (2005)

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 1, 2001, convicting defendant, after a jury trial, of assault in the first and second degrees, criminal possession of a weapon in the second and third degrees and reckless endangerment in the first degree, and sentencing him to concurrent terms of 10 years, 5 years, 7 years, 4 years and 2 1/313 to 7 years, respectively, and order, same court and Justice, entered on or about July 2, 2003, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The eyewitness testimony, coupled with the extensive ballistic evidence, warranted the conclusion that, even if one or more persons other than defendant fired shots during the incident in question, it was defendant who fired the shots that injured the victims.

The court's justification charge, viewed as a whole (see People v. Fields, 87 N.Y.2d 821, 637 N.Y.S.2d 355, 660 N.E.2d 1134 [1995] ), conveyed the appropriate principles and adequately explained the concept of duty to retreat as it related to the use of deadly force in defense of another person (see People v. Van Allen, 216 A.D.2d 39, 627 N.Y.S.2d 664 [1995], lv. denied 86 N.Y.2d 804, 632 N.Y.S.2d 517, 656 N.E.2d 616 [1995] ).

 The court properly exercised its discretion in precluding proffered testimony by defendant in support of his claim that he was not the initial aggressor, since the proposed testimony was devoid of any probative value (see People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841 [1976];  People v. Rossakis, 256 A.D.2d 366, 681 N.Y.S.2d 350 [1998], lv. denied 93 N.Y.2d 929, 693 N.Y.S.2d 512, 715 N.E.2d 515 [1999] ).

 The court properly admitted a prior consistent statement by one of the victims in order to rebut the defense claim of recent fabrication, allegedly motivated by the victim's civil lawsuit (see e.g. People v. Whitley, 14 A.D.3d 403, 406, 788 N.Y.S.2d 94 [2005] ).   The court also properly admitted the statement as an excited utterance (see People v. Johnson, 1 N.Y.3d 302, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] ).

 The prosecutor did not become an unsworn witness by eliciting testimony about his participation in witness interviews, since he did not express his personal belief or opinion about the witnesses' testimony, and since his conduct was not a material issue in the trial (see People v. Paperno, 54 N.Y.2d 294, 304, 445 N.Y.S.2d 119, 429 N.E.2d 797 [1981];  People v. Thompson, 233 A.D.2d 755, 757, 650 N.Y.S.2d 825 [1996], lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997 [1997];  People v. King, 175 A.D.2d 266, 572 N.Y.S.2d 723 [1991], lv. denied 79 N.Y.2d 828, 580 N.Y.S.2d 209, 588 N.E.2d 107 [1991];  compare People v. Bailey, 58 N.Y.2d 272, 460 N.Y.S.2d 912, 447 N.E.2d 1273 [1983] ).

 The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   The prosecutor did not make an indirect comment on defendant's failure to testify (see People v. Watson, 188 A.D.2d 315, 590 N.Y.S.2d 481 [1992], lv. denied 81 N.Y.2d 849, 595 N.Y.S.2d 748, 611 N.E.2d 787 [1993] ), and the challenged remarks constituted fair comment on the evidence, as well as reasonable inferences that could be drawn therefrom, in proper response to the defense summation.

 The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   The record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual.   This finding is entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ).   Defendant's procedural arguments concerning the court's conduct of the Batson proceedings are unpreserved and without merit.

 After a thorough hearing, the court properly denied defendant's CPL 440.10 motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The record supports the court's conclusion that the transactions at issue between defendant and a business enterprise controlled by codefendant Sean Combs, which employed defendant as a recording artist, did not constitute a payment of legal fees by a codefendant so as to create a conflict of interest.   The trial record, as supplemented by the extensive record on the motion to vacate judgment, establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   The actions of counsel challenged by defendant on appeal constituted reasonable strategic decisions that did not prejudice defendant or deprive him of a fair trial (see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ).

We perceive no basis for reducing the sentence.

Defendant's remaining contentions, including his arguments under the Confrontation Clause and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963], are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.