PEOPLE v. TORRES

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jose L. TORRES, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Eric M. Dolan of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Arthur G. Weinstein of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ).   Defendant's contention with respect to the Sandoval ruling is not preserved for our review (see CPL 470.05[2];  People v. Jackson, 242 A.D.2d 462, 662 N.Y.S.2d 260, lv. denied 91 N.Y.2d 834, 667 N.Y.S.2d 688, 690 N.E.2d 497).   In any event, we conclude that Supreme Court “balanced the appropriate factors and properly exercised its discretion” (People v. Scheri, 268 A.D.2d 251, 251, 701 N.Y.S.2d 45, lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 9, 731 N.E.2d 626).   Contrary to the further contention of defendant, he was not denied a fair trial by the statements of a prospective juror that were potentially related to defendant's prior criminal history.   After defense counsel argued in chambers that the jury panel had been tainted, the court inquired of the jury panel whether anyone had heard any such information provided by the prospective juror and received no affirmative responses.   Thus, no “potential jurors reveal [ed] knowledge or opinions reflecting a state of mind likely to preclude impartial service” (People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932).   Defense counsel made no further objection and did not request more complete curative action, and thus the matter is deemed to have been resolved to defendant's satisfaction (see generally People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  People v. Young, 234 A.D.2d 922, 922-923, 653 N.Y.S.2d 466, lv. denied 89 N.Y.2d 1017, 658 N.Y.S.2d 255, 680 N.E.2d 629;  People v. Rodriguez, 194 A.D.2d 304, 598 N.Y.S.2d 225, lv. denied 82 N.Y.2d 718, 725, 602 N.Y.S.2d 815, 823, 622 N.E.2d 316, 324).   The contention of defendant concerning prosecutorial misconduct on summation is not preserved for our review (see CPL 470.05[2] ) and, in any event, we reject his contention that he was deprived of a fair trial by prosecutorial misconduct (see People v. Rubin, 101 A.D.2d 71, 78, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114;  see also People v. Gates, 6 A.D.3d 1062, 1063, 775 N.Y.S.2d 621, lv. denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574).   Finally, we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although there were inconsistencies in the evidence, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see generally People v. Lauderdale, 13 A.D.3d 1173, 787 N.Y.S.2d 769;  People v. Duffy, 299 A.D.2d 914, 750 N.Y.S.2d 228, lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: