PEOPLE v. BASS (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephen A. Knopf, J.), rendered October 27, 2015, convicting him of unauthorized use of a vehicle in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged, inter alia, with unauthorized use of a vehicle in the second degree and petit larceny.  The charges were based upon allegations that the defendant was found inside a truck by its owner, that the defendant was stealing a circular saw that was stored in a container inside the truck's cab, and that the defendant and the complainant struggled once the defendant was discovered.  After a jury trial, the defendant was convicted of unauthorized use of a vehicle in the second degree and petit larceny.

The defendant's contention that the Supreme Court failed to follow the appropriate steps in determining his Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) is unpreserved for appellate review (see People v. Wallace, 128 A.D.3d 866, 868, 7 N.Y.S.3d 610;  People v. Cunningham, 119 A.D.3d 601, 988 N.Y.S.2d 696;  People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152).  In any event, the contention is without merit, since once the prosecutor set forth race-neutral reasons for the peremptory strike, the defendant failed to meet his burden of establishing that those reasons were pretextual (see People v. Hecker, 15 N.Y.3d 625, 663–664, 917 N.Y.S.2d 39, 942 N.E.2d 248;  People v. Smocum, 99 N.Y.2d 418, 423–424, 757 N.Y.S.2d 239, 786 N.E.2d 1275;  People v. Drayton–Archer, 159 A.D.3d 919, 73 N.Y.S.3d 218).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of unauthorized use of a vehicle in the second degree and petit larceny beyond a reasonable doubt (see Penal Law §§ 155.25, 165.06;  People v. Franov, 17 N.Y.3d 58, 64, 926 N.Y.S.2d 840, 950 N.E.2d 473).  Moreover, upon our independent review pursuant to CPL 470.15(5), 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, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that certain comments made by the prosecutor on summation deprived him of a fair trial is unpreserved for appellate review, as the defendant either failed to object, raised only generalized objections, failed to request curative instructions or additional relief, or failed to timely move for a mistrial (see CPL 470.05[2];  People v. Morris, 157 A.D.3d 827, 66 N.Y.S.3d 644;  People v. Grant, 152 A.D.3d 792, 59 N.Y.S.3d 433;  People v. McMillan, 130 A.D.3d 651, 12 N.Y.S.3d 301, affd 29 N.Y.3d 145, 53 N.Y.S.3d 590, 75 N.E.3d 1151).  In any event, the challenged comments constituted either fair response to arguments presented in summation by defense counsel, fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Monteleone, 71 A.D.3d 790, 895 N.Y.S.2d 751;  People v. Crawford, 54 A.D.3d 961, 863 N.Y.S.2d 830), or were sufficiently ameliorated by the Supreme Court's instructions (see People v. Daley, 50 A.D.3d 1051, 855 N.Y.S.2d 678).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

MASTRO, J.P., SGROI, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.