Opinion
November 13, 1998
Appeal from the Supreme Court, Monroe County, Doyle, J. — Murder, 2nd Degree.
Present — Pine, J. P., Hayes, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: After his judgment of conviction was reversed ( see, People v. Hammock, 182 A.D.2d 1114), defendant was retried and convicted of four counts of murder in the second degree (Penal Law § 125.25, [3]) and five counts of attempted robbery in the first degree (Penal Law § 110.00, 160.15 Penal [1]-[4]).
We reject the contention of defendant that his retrial was barred because his first conviction was reversed on the ground of prosecutorial misconduct ( see, CPL 40.30; 470.20 [1]; People v. Perkins, 156 A.D.2d 595, lv denied 76 N.Y.2d 740; People v. Putnam, 150 A.D.2d 925, 926-927; see also, People v. Adames, 83 N.Y.2d 89, 93). The prosecutorial misconduct involved does not bar a retrial on the ground of double jeopardy ( see, People v. Putnam, supra, at 926-927).
Supreme Court properly denied after a hearing the motion of defendant to suppress evidence seized during the search of his residence. The record supports the court's determination that the search warrant was amended to correct the street address of the residence in the presence of the issuing Judge before the search warrant was executed ( see, People v. Salgado, 57 N.Y.2d 662, 663, rearg denied 57 N.Y.2d 956). The testimony of defendant's wife that a police officer altered the search warrant at her residence presented a credibility issue for the court ( see, People v. Williams, 202 A.D.2d 976, lv denied 83 N.Y.2d 916). The court was free to reject that testimony and to credit the testimony of the People's witnesses. Because of the court's "particular advantage of having seen and heard the witnesses" ( People v. Williams, supra, at 976), the court's determination should not be disturbed.
By failing to challenge the composition of the jury panel before jury selection commenced, defendant is deemed to have waived his objection to the composition of the panel ( see, CPL 270.10; People v. Faulk, 251 A.D.2d 345). Defendant's Batson claim ( Batson v. Kentucky, 476 U.S. 79) lacks merit. The prosecutor proffered sufficient racially neutral reasons for exercising his peremptory challenge to exclude a prospective juror ( see, People v. Williams, 206 A.D.2d 917, lv denied 84 N.Y.2d 911; People v. Craig, 194 A.D.2d 687, lv denied 82 N.Y.2d 716).
Contrary to the contention of defendant, the remarks of the prosecutor during his opening statement were not so egregious as to deprive defendant of a fair trial ( see, People v. McMillan, 234 A.D.2d 1006, lv denied 89 N.Y.2d 1038; see generally, People v. Galloway, 54 N.Y.2d 396, 401).
We reject the contention of defendant that he was denied the right to effective assistance of counsel. The conduct of the defense, together with the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant was afforded meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147). Defense counsel's inadvertent remark during voir dire does not rise to the level of ineffective assistance of counsel ( see, People v. Baxter, 190 A.D.2d 1014, lv denied 81 N.Y.2d 1011, writ of coram nobis granted on other grounds 207 A.D.2d 1034). To the extent that defendant's contention concerning ineffective assistance of counsel arises from matters outside the record, the facts underlying that contention should be developed through a postjudgment motion under CPL article 440 ( see, People v. Speed, 226 A.D.2d 1090, 1091, lv denied 88 N.Y.2d 969).