Opinion
8257 Ind. 2948/08
01-31-2019
The PEOPLE of the State of New York, Respondent, v. Devin ALEXANDER, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Tom, Kahn, Singh, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered January 17, 2014, convicting defendant, after a jury trial, of murder in the second degree, attemptedmurder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.
The court properly denied defendant's application made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]. Defendant did not produce numerical or nonnumerical "evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred" ( Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 [2005] ), and thus failed to make a prima facie showing of racial discrimination in the People's exercise of challenges.
As we determined in rejecting a generally similar claim made on a codefendant's appeal ( People v. Burgan, 152 A.D.3d 401, 406, 59 N.Y.S.3d 14 [1st Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] ), defendant's claim that the People presented allegedly false testimony is based on factual assertions outside the record and therefore is unreviewable on direct appeal. The record does not support defendant's assertion that law enforcement failed to investigate the truth of a witness's testimony. In any event, at trial defendant was not prevented from challenging the thoroughness of the investigation, and the Court of Appeals has "decline[d] to impose an affirmative obligation upon the police to obtain exculpatory information for criminal defendants" ( People v. Hayes, 17 N.Y.3d 46, 52, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011], cert denied 565 U.S. 1095, 132 S.Ct. 844, 181 L.Ed.2d 553 [2011] ).
Defendant has not preserved any of his challenges to the court's responses to three jury notes and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. In each instance, the court provided a meaningful response that was satisfactory to the defense (see People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ). Defendant's ineffective assistance of counsel claims relating to these issues is unavailing (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.