PEOPLE v. ROSARIO (2019)

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  There is no basis for disturbing the jury's credibility determinations.  The evidence supports the conclusion that defendant simultaneously possessed a pistol and a magazine loaded with ammunition, thereby possessing a “loaded firearm” (Penal Law § 265.00[15]).

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].  We find that the record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual.  “Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility” (Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 [2008]), and the court's finding in this regard 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]).

The court providently exercised its discretion in denying defendant's mistrial motion, made when the court, in apologizing to the jury for a delay, made a brief reference to defendant's incarceration.  Although the court should have explained the delay without mentioning defendant's jail status, this did not warrant a mistrial, because the court provided suitable curative instructions (see People v. Jenkins, 88 N.Y.2d 948, 950–951, 647 N.Y.S.2d 157, 670 N.E.2d 441 [1996]), and because the jury was already aware, by way of evidence, that defendant had been incarcerated for at least part of the pendency of the case.

We perceive no basis for reducing the sentence.