Opinion
2013-11-20
The PEOPLE, etc., respondent, v. Matthew MOHABIR, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered April 29, 2011, convicting him of robbery in the second degree and unlawful sale or possession of an imitation firearm, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's Batson challenge ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied, as he failed to make the requisite prima facie showing of discrimination. In order to establish a prima facie case of discrimination in the selection of jurors under Batson, a defendant must show that the prosecutor exercised peremptory challenges to remove one or more members of a cognizable racial group from the venire, and that the circumstances support a finding that those peremptory challenges were used to exclude potential jurors because of their race ( see People v. Brown, 97 N.Y.2d 500, 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266). Here, the mere fact that the prosecutor exercised four out of nine peremptory challenges against African–American women was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination, and the defendant failed to recite circumstances sufficient to establish the requisite pattern of discrimination ( see id. at 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266; People v. Lassiter, 44 A.D.3d 877, 878, 843 N.Y.S.2d 448; People v. Fryar, 29 A.D.3d 919, 920, 814 N.Y.S.2d 755; People v. Chowdhury, 22 A.D.3d 596, 802 N.Y.S.2d 252; People v. Kennerly, 20 A.D.3d 491, 798 N.Y.S.2d 512).
Since the defendant did not assert a constitutional right to introduce the evidence of the complainant's immigration timeline and status at trial, his constitutional claims are unpreserved for appellate review ( see People v. Stephens, 84 N.Y.2d 990, 992, 622 N.Y.S.2d 502, 646 N.E.2d 804; People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618). Further, the defendant was not denied his right to an effective cross-examination of the complainant, as he was “afforded a full and fair opportunity to expose infirmities in the complainant's testimony through cross-examination” (Matter of Demetri B., 54 A.D.3d 331, 332, 862 N.Y.S.2d 582).
The defendant's allegations of improper bolstering are also unpreserved for appellate review, as defense counsel either failed to make specific and timely objections to the testimony at trial or failed to seek further ameliorative action after certain objections were sustained ( seeCPL 470.05 [2]; People v. Lewis, 34 A.D.3d 599, 823 N.Y.S.2d 685).
The Supreme Court properly declined the defendant's request to instruct the jury that the complainant could be an accomplice-in-fact, whose trial testimony requires corroboration ( seeCPL 60.22). The defendant offered only unsupported speculation that the witness was a participant in the crimes ( see People v. Pelsey, 60 A.D.3d 1088, 876 N.Y.S.2d 484).
The Supreme Court also properly declined the defendant's request for a jury charge on petit larceny as a lesser-included offense of robbery in the second degree. Considering the evidence in the light most favorable to the defendant, there is no reasonable view of the evidence that would support a finding that the defendant committedthe lesser offense, but not the greater ( see People v. Vataj, 107 A.D.3d 610, 611, 967 N.Y.S.2d 644, lv. denied21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151; People v. Rodriguez, 295 A.D.2d 544, 544–545, 744 N.Y.S.2d 690).