PEOPLE v. McILWAIN

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Sean McILWAIN, Defendant-Appellant.

Decided: March 31, 1999

Present:  DENMAN, P.J., GREEN, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Nancy Ann Gilligan, Erie County District Attorney's Office, Buffalo, for plaintiff-respondent. Vincent F. Gugino, Legal Aid Bureau of Buffalo, Buffalo, for defendant-appellant.

 We reject the contention of defendant that County Court erred in denying his objection, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to the prosecutor's peremptory challenge of a black prospective juror.   The prosecutor proffered a race-neutral explanation for the challenge, and “the trial court was in the best position to observe the prosecutor's demeanor and determine whether his explanations were credible or merely pretexts for racial discrimination” (People v. Adams, 247 A.D.2d 625, 669 N.Y.S.2d 245, lv. denied 92 N.Y.2d 847, 677 N.Y.S.2d 77, 699 N.E.2d 437, citing People v. Jupiter, 210 A.D.2d 431, 434, 620 N.Y.S.2d 426, lv. denied 85 N.Y.2d 911, 627 N.Y.S.2d 333, 650 N.E.2d 1335).   The court did not abuse its discretion in limiting cross-examination of the robbery victim with respect to matters contained in his school records (see, People v. Tyes, 175 A.D.2d 624, 572 N.Y.S.2d 603, lv. denied 79 N.Y.2d 865, 580 N.Y.S.2d 737, 588 N.E.2d 772).   Defendant presented no proof to support a charge on the affirmative defense set forth in Penal Law § 160.15(4), and thus the court properly denied his request to charge that affirmative defense (see, People v. Cotarelo, 71 N.Y.2d 941, 942-943, 528 N.Y.S.2d 816, 524 N.E.2d 137;   People v. Smith [James], 220 A.D.2d 547, 632 N.Y.S.2d 211).   The sentence is neither unduly harsh nor severe.

 The judgment must be modified, however, because the People presented no proof that the shotgun used in the robbery was loaded or operable.   As a result, the evidence is insufficient to support the conviction of robbery in the first degree (Penal Law § 160.15[2] ) under the first count of the indictment (see, People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823;  People v. Wilson, 252 A.D.2d 241, 684 N.Y.S.2d 718;  People v. Fwilo, 47 A.D.2d 727, 365 N.Y.S.2d 194) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) under the fourth count (see, People v. Fwilo, supra).   We therefore modify the judgment by reducing the conviction of robbery in the first degree under the first count to robbery in the third degree and by vacating the sentence imposed thereon, and we remit the matter to Erie County Court for sentencing on that count (see, CPL 470.20[4] ).   We further modify the judgment by reversing the conviction of criminal possession of a weapon in the fourth degree under the fourth count, vacating the sentence imposed thereon and dismissing that count.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for sentencing.

MEMORANDUM: