PEOPLE v. ESSOR (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered October 24, 2019, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contentions that the Supreme Court erred in excusing, sua sponte, and prior to the voir dire, observant Jewish prospective jurors who would be unavailable to serve on the upcoming Jewish holidays without further inquiry (see CPL 470.05[2];  People v. Hopkins, 76 N.Y.2d 872, 873, 560 N.Y.S.2d 982, 561 N.E.2d 882;  People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696).  Contrary to the defendant's contention, the allegedly improper excusal of those jurors did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Augustus, 163 A.D.3d 981, 982, 83 N.Y.S.3d 281;  People v. Cunningham, 119 A.D.3d at 601, 988 N.Y.S.2d 696).  In any event, the defendant's contentions are without merit (see People v. Andolina, 23 A.D.3d 573, 574, 805 N.Y.S.2d 399).

The defendant's contention that his sentence as a second violent felony offender (see Penal Law § 70.04) is unconstitutional is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge or otherwise contest his criminal history, including the relevant periods of incarceration, before the Supreme Court (see CPL 470.05[2];  People v. Hernandez, 43 N.Y.3d 591, 597, 239 N.Y.S.3d 59, 265 N.E.3d 1076;  People v. McGill, 243 A.D.3d 808, 808, 243 N.Y.S.3d 175).  We decline to review it in the exercise of our interest of justice jurisdiction (see People v. McGill, 243 A.D.3d at 808, 243 N.Y.S.3d 175;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.