Opinion
05-31-2017
The PEOPLE, etc., respondent, v. Kevin SANTOS, appellant.
Lynn W.L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered June 20, 2013, convicting him of murder in the second degree and burglary in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
At approximately 2:20 a.m. on December 12, 2011, Police Officer Peter Figoski was shot in the face when he and his partner responded as backup to a call to the 911 emergency number of a burglary in progress at a house in Brooklyn. The officer was rushed to the hospital, where he died shortly thereafter. Five people were arrested and indicted in connection with the burglary and shooting: Lamont Pride, the alleged shooter, as well as the defendant and his alleged accomplices in the burglary, Nelson Morales, Ariel Tejada, and Michael Velez. Following a jury trial, the defendant was convicted of murder in the second degree (Penal Law § 125.25[3] ) and burglary in the first degree (Penal Law § 140.30[1] ).
The defendant's contention that the Supreme Court abdicated its judicial function by allowing prospective jurors who concluded that they could not be fair and impartial to opt out of serving on the jury without further inquiry is unpreserved for appellate review (see CPL 470.05[2] ; People v. King, 27 N.Y.3d 147, 157, 31 N.Y.S.3d 402, 50 N.E.3d 869 ; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696 ; People v. McGhee, 4 A.D.3d 485, 485, 772 N.Y.S.2d 344 ; People v. Boozer, 298 A.D.2d 261, 748 N.Y.S.2d 379 ), and, in any event, without merit.
The Supreme Court properly granted the People's reverse–Batson application (see Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) with respect to two prospective jurors (see People v. Bell , 126 A.D.3d 718, 720, 5 N.Y.S.3d 227 ; People v. Fogel , 73 A.D.3d 803, 804, 899 N.Y.S.2d 655 ; People v. Clarke , 64 A.D.3d 612, 612, 883 N.Y.S.2d 96 ). The court's determination that the facially race-neutral reasons given for the defendant's peremptory challenges to those jurors were pretextual is entitled to great deference on appeal and will not be disturbed where, as here, the determination is supported by the record (see People v. Occhione , 94 A.D.3d 1021, 1022, 942 N.Y.S.2d 185 ; People v. Fogel , 73 A.D.3d 803, 803–804, 899 N.Y.S.2d 655 ).
There is no merit to the defendant's contentions that his rights to confrontation, due process, and a fair trial were violated when the Supreme Court revised its ruling to allow into evidence portions of the defendant's videotaped statement to law enforcement officials that contained out-of-court statements made by an assistant district attorney that certain codefendants had implicated the defendant in the crimes. The defense counsel opened the door to the admission of those statements in his opening statement (see People v.
Reid, 19 N.Y.3d 382, 384–385, 948 N.Y.S.2d 223, 971 N.E.2d 353 ; People v. Bryant, 39 A.D.3d 768, 768, 834 N.Y.S.2d 305 ; People v. Gladden, 298 A.D.2d 462, 463, 748 N.Y.S.2d 170 ; People v. Simpson, 256 A.D.2d 205, 206, 682 N.Y.S.2d 376 ). Moreover, the statements were not received for their truth, but to explain why the defendant confessed to the police when he did and to rebut the defense's contention that the defendant's confession was coercively derived (see People v. Reynoso, 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456 ; People v. Bryant, 39 A.D.3d at 768, 834 N.Y.S.2d 305 ; People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545 ; People v. Perez, 9 A.D.3d 376, 377, 779 N.Y.S.2d 584 ). Further, the jury was pointedly instructed by the court that it was not to consider any of those statements as evidence against the defendant, and the jury is presumed to have followed such admonition (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 ).
The Supreme Court's charge to the jury concerning the voluntariness of the defendant's statement to the police accurately stated the law, and the court did not improvidently exercise its discretion in declining to give the jury an expanded charge (see People v. Dunlap, 51 A.D.3d 943, 944, 858 N.Y.S.2d 368 ).
The sentence imposed on the conviction of burglary in the first degree was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., CHAMBERS, ROMAN and CONNOLLY, JJ., concur.