PEOPLE v. COLE (2020)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of two counts of robbery in the first degree (Penal Law § 160.15 [2], [4]), two counts of robbery in the second degree (§ 160.10[1], [2][a] ), one count of kidnapping in the second degree (§ 135.20), two counts of assault in the second degree (§ 120.05[2], [6] ), and four counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), defendant contends that the prosecutor committed a Batson violation by peremptorily striking an African–American prospective juror. We reject that contention.

In determining whether a party has used peremptory challenges to exclude prospective jurors based on race, a trial court must follow the three-step process set forth in Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “At step one, the movant must make a prima facie showing that the peremptory strike was used to discriminate; at step two, if that showing is made, the burden shifts to the opposing party to articulate a non-discriminatory reason for striking the juror; and finally, at step three, the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual and whether the movant has shown purposeful discrimination” (People v. Bridgeforth, 28 N.Y.3d 567, 571, 46 N.Y.S.3d 824, 69 N.E.3d 611 [2016]; see People v. Pescara, 162 A.D.3d 1772, 1772–1773, 79 N.Y.S.3d 827 [4th Dept. 2018]).

Initially, we note that “the issue of whether defendant established a prima facie case became moot when the prosecutor stated his race-neutral reasons for the subject challenge” (People v. Malloy, 166 A.D.3d 1302, 1308, 88 N.Y.S.3d 652 [3d Dept. 2018], affd 33 N.Y.3d 1078, 104 N.Y.S.3d 595, 128 N.E.3d 673 [2019]). With respect to the merits of defendant's contention, we conclude that the prosecutor's proffered reason for striking the prospective juror, specifically that the prospective juror “indicated she'd have no hesitation in voicing her disagreement with the other jurors,” whereas the prosecutor was “looking for jurors who can harmonize their verdict and come to an unanimous verdict,” was race-neutral (see id.; see generally People v. Payne, 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996]). Contrary to defendant's contention, we further conclude that Supreme Court did not abuse its discretion in determining that the prosecutor's explanation for his peremptory challenge with respect to the prospective juror was not pretextual (see People v. Farrare, 118 A.D.3d 1477, 1477–1478, 989 N.Y.S.2d 202 [4th Dept. 2014], lv denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014]; see generally People v. Linder, 170 A.D.3d 1555, 1558, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019]; People v. English, 119 A.D.3d 706, 706, 988 N.Y.S.2d 697 [2d Dept. 2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014]). Defendant failed to preserve for our review his claim of disparate treatment by the prosecutor of other similarly situated panelists (see People v. Dunham, 170 A.D.3d 569, 570, 97 N.Y.S.3d 52 [1st Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 38, 129 N.E.3d 358 [2019], reconsideration denied 34 N.Y.3d 950, 110 N.Y.S.3d 644, 134 N.E.3d 643 [2019]; see generally People v. Holloway, 71 A.D.3d 1486, 1486–1487, 897 N.Y.S.2d 373 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010]).

We reject defendant's further contention that the court erred in failing to adequately ascertain whether he knowingly and voluntarily relinquished his right to conflict-free assistance of counsel after defense counsel suffered a medical episode resulting in a one-day adjournment of trial. Such an error “requires reversal only if defendant first establishes that defense counsel had a potential conflict of interest” (People v. McGillicuddy, 103 A.D.3d 1200, 1201, 959 N.Y.S.2d 341 [4th Dept. 2013]), and defendant failed to establish that a conflict of interest existed. “Where no conflict of interest is involved, the standard for assessing the effectiveness of trial counsel is whether the attorney provided meaningful representation” (People v. Ennis, 11 N.Y.3d 403, 411, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], cert. denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009]). Here, there is no indication in the record that defense counsel's condition affected his performance at trial (see People v. Morehouse, 5 A.D.3d 925, 927, 774 N.Y.S.2d 100 [3d Dept. 2004], lv denied 3 N.Y.3d 644, 782 N.Y.S.2d 416, 816 N.E.2d 206 [2004]; People v. Badia, 159 A.D.2d 577, 578, 552 N.Y.S.2d 439 [2d Dept. 1990], lv denied 76 N.Y.2d 784, 559 N.Y.S.2d 989, 559 N.E.2d 683 [1990]). Moreover, with respect to defendant's specific allegations of ineffective assistance, “[d]efendant failed to demonstrate that those alleged errors were not strategic in nature ․, and mere disagreement with trial strategy is insufficient to establish that defense counsel was ineffective” (People v. Henry, 74 A.D.3d 1860, 1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010]).

Finally, we reject defendant's contention that the court failed to comply with the procedure for disclosure of jury notes to counsel set forth in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991). “[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response” (People v. Williams, 142 A.D.3d 1360, 1362, 38 N.Y.S.3d 342 [4th Dept. 2016], lv denied 28 N.Y.3d 1128, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016] [internal quotation marks omitted] ), and defendant has not established that the note at issue contained a substantive inquiry (see id.; People v. Ziegler, 78 A.D.3d 545, 546, 911 N.Y.S.2d 331 [1st Dept. 2010], lv denied 16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191 [2011]; People v. Robinson, 51 A.D.3d 575, 576, 860 N.Y.S.2d 15 [1st Dept. 2008], lv denied 11 N.Y.3d 793, 866 N.Y.S.2d 620, 896 N.E.2d 106 [2008]).