PEOPLE v. CANNON (2023)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and endangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light of the elements of the crime of robbery in the first degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict with respect to that count is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Although a different verdict would not have been unreasonable, it cannot be said that the jury “failed to give the evidence the weight it should be accorded” (id.; see People v. Kalinowski, 118 A.D.3d 1434, 1436, 988 N.Y.S.2d 776 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014]). We reject defendant's further contention that Supreme Court erred in denying her Batson challenge with respect to two prospective jurors. The People gave race-neutral reasons for the peremptory challenges, and defendant did not meet her ultimate burden of establishing that those reasons were pretextual (see People v. Switts, 148 A.D.3d 1610, 1611, 52 N.Y.S.3d 178 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017]; People v. Johnson, 38 A.D.3d 1327, 1328, 833 N.Y.S.2d 338 [4th Dept. 2007], lv denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201 [2007]). “[T]he court was in the best position to observe the demeanor of the prospective juror[s] and the prosecutor, and its ․ determination that the prosecutor's explanation[s were] race-neutral and not pretextual is entitled to great deference” (People v. Dandridge, 26 A.D.3d 779, 780, 809 N.Y.S.2d 353 [4th Dept. 2006], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] [internal quotation marks omitted]). We see no reason to disturb that determination. Finally, we reject defendant's contention that she was denied a fair trial because of improper statements made by the prosecutor during summation. “To the extent that a portion of the prosecutor's summation could be viewed as containing a misstatement of law, ․ any prejudice was avoided by the court's instructions, which the jury is presumed to have followed” (People v. Harper, 132 A.D.3d 1230, 1234, 17 N.Y.S.3d 797 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] [internal quotation marks omitted]; see People v. Padin, 121 A.D.3d 628, 629, 994 N.Y.S.2d 309 [1st Dept. 2014], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015]).