Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25  ). Contrary to defendant's contention, Supreme Court properly denied his request to charge the jury on the lesser included offense of manslaughter in the first degree (§ 125.20 ). An eyewitness testified that the victim was seated on a porch listening to music when defendant, who was on the steps, fired a single shot to the victim's head. Defendant admitted to the police that he shot the victim in the head and killed him, and the Medical Examiner testified that the “stippling” present on the victim's body, i.e., unspent gunpowder and small bits of metal, indicated that the shot was fired from a distance of 1 to 1 ½ feet. We therefore conclude that there is no reasonable view of the evidence that defendant intended to cause serious physical injury but did not intend to kill the victim (see People v. Muhammad, 100 A.D.3d 1021, 1022, 954 N.Y.S.2d 231, lv. denied 20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 ; see generally People v. Miller, 6 N.Y.3d 295, 302, 812 N.Y.S.2d 20, 845 N.E.2d 451 ; People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ).
Contrary to defendant's further contention, the court properly admitted in evidence photographs taken during the autopsy inasmuch as they assisted the jury in understanding the Medical Examiner's testimony concerning the gunshot wound (see People v. Trinidad, 107 A.D.3d 1432, 1432, 966 N.Y.S.2d 631, lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 544, 995 N.E.2d 860 ). Defendant also contends that the court abused its discretion in admitting photographs of the victim taken at the crime scene because they were not relevant and were highly prejudicial. We reject that contention (see People v. Pobliner, 32 N.Y.2d 356, 369–370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 ; see also People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ). In any event, the evidence of defendant's guilt is overwhelming, and there is no significant probability that he would have been acquitted in the absence of the photographs of the crime scene. We therefore conclude that any error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
We reject defendant's contention that the court erred in denying his Batson objections with respect to the use of peremptory challenges for two prospective jurors. The court's determination of Batson objections is entitled to “great deference” (Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; see People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 ; People v. Luciano, 10 N.Y.3d 499, 505, 860 N.Y.S.2d 452, 890 N.E.2d 214 ), and we conclude that the court did not abuse its discretion in this case. With respect to one of the prospective jurors, defendant failed to present “facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenge[ ] to exclude [the] potential juror because of [her] race” (People v. Childress, 81 N.Y.2d 263, 266, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; see People v. Green, 60 A.D.3d 1320, 1321, 875 N.Y.S.2d 390, lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 ). With respect to the second prospective juror, the court properly determined that the prosecutor offered a race-neutral explanation for the exercise of the peremptory challenge, i.e., that the prospective juror's brother had been imprisoned for a rape conviction (see People v. Johnson, 74 A.D.3d 1912, 1913, 904 N.Y.S.2d 847 ; People v. Jackson, 37 A.D.3d 1091, 1091, 829 N.Y.S.2d 331, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240 ). Defendant failed to preserve for our review his contention that the exercise of peremptory challenges for three of four female African–American prospective jurors constituted a Batson violation (see generally People v. Cooley, 48 A.D.3d 1091, 1092, 851 N.Y.S.2d 771, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 ). In any event, we conclude that defendant's “numerical argument [is] unsupported by factual assertions or comparisons that would serve as a basis for a prima facie case of impermissible discrimination” (People v. Brown, 97 N.Y.2d 500, 508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.