PEOPLE v. CLARKE (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered November 21, 2005, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (three counts), criminal possession of a forged instrument in the second degree, and unlawful wearing of a body vest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the trial court properly granted the People's reverse-Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  People v. Luciano, 10 N.Y.3d 499, 502-503, 860 N.Y.S.2d 452, 890 N.E.2d 214;  People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50).   The court's determination that defense counsel's proffered reasons for challenging the juror in question were pretextual is entitled to great deference and is supported by the record (see People v. Boston, 52 A.D.3d 728, 858 N.Y.S.2d 910).   The defendant's claim that the juror in question should have been excused because she was twice a crime victim was not raised at the voir dire and, thus, is unpreserved for appellate review (see People v. King, 277 A.D.2d 708, 709, 716 N.Y.S.2d 141).   In any event, the defendant's challenge on this basis is without merit, as he did not question this juror further about the two incidents and did not challenge other jurors who were also crime victims (see People v. Quito, 43 A.D.3d 411, 413, 840 N.Y.S.2d 622;  People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263).

 The defendant's contention that the trial court erred in admitting into evidence a body vest he was wearing at the time of the incident on the ground that the chain of custody for the body vest was not established is without merit, since the item was not fungible (see People v. Hill, 220 A.D.2d 927, 928, 632 N.Y.S.2d 881;  People v. Javier, 210 A.D.2d 118, 620 N.Y.S.2d 66).

The defendant's contention that a witness's testimony as to certain inculpatory statements he made constituted inadmissible hearsay is without merit (see People v. Samuels, 162 A.D.2d 559, 556 N.Y.S.2d 747).   Further, the allegations of prosecutorial misconduct committed during cross-examination of the defendant are unpreserved for appellate review and, in any event, are without merit.

 The defendant contends that the People violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and CPL 240.20(1)(a) in untimely disclosing statements made by his codefendant to an Assistant District Attorney and in failing to disclose statements the codefendant made to the court in camera.   However, those statements inculpated the defendant and did not concern the “credibility of a prosecution witness” (People v. Baxley, 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746 [emphasis added];  see People v. Bryant, 247 A.D.2d 400, 401, 668 N.Y.S.2d 646).   Further, the statements made to the court in camera were not within the People's “possession, custody, or control” (People v. Carnett, 19 A.D.3d 703, 703, 798 N.Y.S.2d 90).   With respect to the alleged violations of CPL 240.20(1)(a), the defendant was not “substantially prejudiced” (People v. Iljaz, 282 A.D.2d 689, 689, 723 N.Y.S.2d 705) by the People's delay in disclosing the statements that were made to one of their assistants (id.;   see People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259), and the People had no obligation to disclose the statements that were made to the court in camera as the court is not a “public servant engaged in [a] law enforcement activity” (CPL 240.20[1][a] ).

The defendant's challenges to remarks by the prosecutor in summation and the trial court's instructions to the jury are unpreserved for appellate review and, in any event, are without merit.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5];  People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Upon viewing the record as a whole, we conclude that the defendant was not denied the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112, cert. denied 547 U.S. 1040, 126 S.Ct. 1622, 164 L.Ed.2d 334;  People v. Rivera, 49 A.D.3d 783, 783-784, 853 N.Y.S.2d 627).

The defendant's remaining contentions are without merit.