PEOPLE v. TAPPER (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 third 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).   The trial court's determination that the proffered reason for challenging the juror in question, that she had previously served on a jury, was pretextual, is entitled to great deference and is supported by the record (see People v. Quito, 43 A.D.3d 411, 412-413, 840 N.Y.S.2d 622;  People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263).

 The trial court providently exercised its discretion in denying the defendant's challenge for cause to a potential juror (see People v. Franklin, 7 A.D.3d 966, 967, 776 N.Y.S.2d 596).   Even if a prima facie showing of actual bias had been made (see People v. Torpey, 63 N.Y.2d 361, 367, 482 N.Y.S.2d 448, 472 N.E.2d 298), her unequivocal answers demonstrated that she could be fair and impartial (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Johnson, 278 A.D.2d 245, 717 N.Y.S.2d 268).

 The defendant's contention that the prosecutor violated the unsworn witness rule during the prosecutor's cross-examination of him and during summation is unpreserved for appellate review and, in any event, is without merit (see People v. Paperno, 54 N.Y.2d 294, 302, 445 N.Y.S.2d 119, 429 N.E.2d 797;  People v. Rivera, 27 A.D.3d 491, 492, 810 N.Y.S.2d 333;  People v. Blackwood, 295 A.D.2d 292, 293, 744 N.Y.S.2d 667).

 The defendant's challenge to certain remarks made by the prosecutor during summation is unpreserved for appellate review (see People v. Hollenquest, 48 A.D.3d 592, 593, 849 N.Y.S.2d 899).   In any event, the remarks either were fair comment, were within the permissible bounds of rhetorical comment, or do not warrant reversal (see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Wright, 40 A.D.3d 1021, 837 N.Y.S.2d 217;  People v. Heide, 206 A.D.2d 875, 616 N.Y.S.2d 309, affd. 84 N.Y.2d 943, 620 N.Y.S.2d 814, 644 N.E.2d 1370).

On this record, we cannot conclude that the defendant was denied effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Steele, 135 A.D.2d 673, 522 N.Y.S.2d 248).