PEOPLE v. THOMPSON (2007)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Robert E. THOMPSON, appellant.

Decided: November 27, 2007

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, and MARK C. DILLON, JJ. Randall Richards, Bronxville, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered June 8, 2004, convicting him of grand larceny in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The County Court properly rejected the defendant's argument that the indictment was barred by the statute of limitations (see CPL 30.10[2][b] ), since he failed to make a timely motion to dismiss the indictment (see CPL 255.10[1], 255.20[1];  People v. Bones, 17 A.D.3d 689, 691, 793 N.Y.S.2d 545), and in any event, the argument was without merit (see People v. Rosich, 170 A.D.2d 703, 567 N.Y.S.2d 749).

The County Court properly granted the People's unopposed application to take the then-96-year-old complainant's testimony at a conditional examination (see CPL 660.10 et seq.).   Moreover, the Supreme Court properly admitted into evidence the videotape and transcript of the witness's testimony, including the defendant's lengthy cross-examination (see CPL 670.10[1], 670.20[1] ).

 The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied.   The reasons proffered by the prosecutor for the questioned peremptory challenges were race-neutral.   The defendant failed to carry his ultimate burden of demonstrating discrimination by showing that these reasons were pretextual (see People v. Wells, 7 N.Y.3d 51, 58, 817 N.Y.S.2d 590, 850 N.E.2d 637;  People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275;  People v. Allen, 86 N.Y.2d 101, 104, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).

 The County Court providently exercised its discretion in time-limiting the defense counsel's jury voir dire, since he was provided a fair opportunity to ask relevant and material questions (see CPL 270.15[1][c];  People v. Jean, 75 N.Y.2d 744, 745, 551 N.Y.S.2d 889, 551 N.E.2d 90;  People v. Wheeler, 268 A.D.2d 448, 449, 701 N.Y.S.2d 442).

Contrary to the defendant's contention, the prosecutor's summation comments were, for the most part, proper (see People v. Russo, 201 A.D.2d 512, 513, 607 N.Y.S.2d 413, affd. 85 N.Y.2d 872, 626 N.Y.S.2d 51, 649 N.E.2d 1195).   In any event, the allegedly improper comments constituted harmless error (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's argument alleging ineffective assistance of counsel is without merit (see People v. Baldi, 54 N.Y.2d 137, 151-152, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.