The People, etc., respondent, v. Justin Avila, appellant. (2010)

Argued-December 3, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), dated September 21, 2006, convicting him of criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371) that allowed inquiry into his prior conviction for assault involving a weapon was not an improvident exercise of discretion.   The mere fact that the defendant has committed a crime similar to the one for which he is currently being tried does not preclude inquiry into the prior crime (see People v. Hayes, 97 N.Y.2d 203, 208;  People v. White, 60 AD3d 1095, 1096;  People v. Boseman, 161 A.D.2d 601, 602).

The prosecutor's reason for exercising a peremptory challenge to exclude a potential juror based on his youth relative to the other jurors did not violate the defendant's constitutional rights (see Batson v. Kentucky, 476 U.S. 79;  People v. Payne, 88 N.Y.2d 172).   Age is not a cognizable protected category where the reason for the challenge was related to the facts of the case (see People v. Smalls, 249 A.D.2d 495;  People v. McMichael, 218 A.D.2d 671;  People v. Manigo, 165 A.D.2d 660).

The prosecutor's comments on summation either were made in response to the arguments of defense counsel which attacked the credibility of the prosecution witnesses, were fair comments on the evidence (see People v. Galloway, 54 N.Y.2d 396;  People v. McHarris, 297 A.D.2d 824;  People v. Cariola, 276 A.D.2d 800), or were harmless in light of the court's curative instructions, which obviated any prejudice to the defendant (see People v. Ferguson, 82 N.Y.2d 837;  People v. Cabrera, 11 AD3d 552).

COVELLO, J.P., ANGIOLILLO, LOTT and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court