PEOPLE v. ABODALO (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the prosecution established by a preponderance of the evidence that venue was proper in Nassau County (see CPL 20.40[1];  People v. Ribowsky, 77 N.Y.2d 284, 291–292, 567 N.Y.S.2d 392, 568 N.E.2d 1197;  People v. Lee, 165 A.D.3d 838, 839, 85 N.Y.S.3d 494;  People v. Guzman, 153 A.D.3d 1273, 1274, 61 N.Y.S.3d 573).

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, 348, 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 demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, 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).

The defendant contends, based upon post-verdict examinations of the trial transcript, that the interpreter used during the trial made errors in translation such that he was denied a fair trial.  To the extent that this argument is based on matter that is dehors the record, it is not reviewable on direct appeal (see People v. Manzanales, 170 A.D.3d 752, 753, 93 N.Y.S.3d 587;  People v. Bethea, 159 A.D.3d 710, 713, 71 N.Y.S.3d 589;  People v. Krivoi, 81 A.D.3d 978, 917 N.Y.S.2d 273).  To the extent that this argument is based on matter that does appear in the record, it is without merit (see People v. Mosquero, 128 A.D.3d 985, 986, 10 N.Y.S.3d 137;  cf.  People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386).

The defendant's contention that he was improperly excluded from a sidebar conference is unpreserved for appellate review, as he raised no objection at trial (see People v. Glover, 96 A.D.3d 777, 778, 945 N.Y.S.2d 733).  In any event, the contention is without merit, since the defendant knowingly, voluntarily, and intelligently waived his right to be present at legal sidebar conferences (see People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95;  People v. Reyes, 169 A.D.3d 721, 721, 91 N.Y.S.3d 721;  People v. Maldonado, 167 A.D.3d 1046, 1047, 88 N.Y.S.3d 909).  Moreover, the sidebar conferences at issue involved purely legal matters and, thus, did not constitute a material stage of the proceeding (see People v. Collins, 99 N.Y.2d 14, 19, 750 N.Y.S.2d 814, 780 N.E.2d 499;  People v. Breland, 220 A.D.2d 678, 679, 633 N.Y.S.2d 175).

We agree with the Supreme Court's determination to deny the defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69), as the defendant failed to make a prima facie showing of purposeful discrimination in the People's exercise of peremptory challenges.  The defendant merely contended that the prosecution peremptorily challenged three out of six jurors with Spanish-sounding last names.  The defendant failed to offer any showing of facts and circumstances sufficient to raise an inference of purposeful discrimination (see People v. Hecker, 15 N.Y.3d 625, 653–655, 917 N.Y.S.2d 39, 942 N.E.2d 248;  People v. Childress, 81 N.Y.2d 263, 267–268, 598 N.Y.S.2d 146, 614 N.E.2d 709;  People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136;  People v. Mancha, 162 A.D.3d 903, 903, 75 N.Y.S.3d 276;  People v. Santos, 105 A.D.3d 1064, 1065, 963 N.Y.S.2d 380;  People v. Redish, 262 A.D.2d 664, 665, 693 N.Y.S.2d 191).

The defendant contends that he was deprived of a fair trial by the prosecutor's misconduct during summation.  The claimed instances of misconduct are either unpreserved for appellate review, constituted fair comment on the evidence, were fair responses to arguments and theories presented in the defense summation, were within the permissible bounds of rhetorical comments, or were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Mairena, 160 A.D.3d 986, 988, 75 N.Y.S.3d 246;  People v. Baez, 137 A.D.3d 805, 27 N.Y.S.3d 161;  People v. Pringle, 136 A.D.3d 1061, 1063, 25 N.Y.S.3d 635;  People v. Scurry, 123 A.D.3d 949, 996 N.Y.S.2d 732;  People v. Cherry, 127 A.D.3d 879, 880, 5 N.Y.S.3d 527).

“The defendant's contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial is unpreserved for appellate review, because he did not set forth the issue on the record at the time of sentencing” (People v. Musheyev, 162 A.D.3d 794, 795, 79 N.Y.S.3d 65;  see People v. Hodge, 154 A.D.3d 963, 965, 63 N.Y.S.3d 448;  People v. Cruz, 137 A.D.3d 1158, 1160, 27 N.Y.S.3d 643).  In any event, this contention is without merit.  “The fact that the defendant received a harsher sentence after trial than he was offered during plea negotiations does not indicate that he was punished for exercising his right to a trial” (People v. Croom, 171 A.D.3d 781, 784, 97 N.Y.S.3d 262).  “There is no indication in the record that the sentence[ ][was] the result of vindictiveness or retribution for the defendant's refusal to accept a plea and his exercise of the right to a jury trial” (id. at 784, 97 N.Y.S.3d 262).  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.