People v. PagePeople v. Page
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree (
Contrary to defendant‘s contеntion, the court did not err in imposing a sanction other than dismissal of the charges based on the People‘s loss of a basketball jersey that wаs found in the vicinity of the crime scene and that matched the eyewitness descriptions of clothing worn by the perpetrator. It is within the sound discretiоn of the court to determine the appropriate sanc
Defendant contends that the prosecutor‘s peremptory challenges with respect to two prospective jurors constitute Batson violations. We reject that contention. The People offered race-neutral reasons for each peremptory challenge at issue, and thе reasons were not pretextual (see generally People v Smocum, 99 NY2d 418, 422 [2003]; People v Allen, 86 NY2d 101, 109-110 [1995]). Specifically, the People explained that they used one peremptory challenge with respect to an African-American woman because her brother was a prison chaplain and she therefore wаs likely to be sympathetic to defendant (see generally People v McCoy, 46 AD3d 1348, 1349 [2007], lv denied 10 NY3d 813 [2008]). The People further explained that they used a peremptory challenge with respect to another African-American woman because, inter alia, she was blind in one eye and partially deaf in one ear аnd those disabilities may have affected her ability to see and hear the evidence at trial (see People v Falkenstein, 288 AD2d 922, 922 [2001], lv denied 97 NY2d 704 [2002]).
Although we agree with defendant that the prosecutor on summation improperly suggested that defendant had the burden of proof, we conclude that the prosecutor‘s “improper comment[s were] not so egregious that defendant was thereby deprived of a fair trial” (People v Willson, 272 AD2d 959, 960 [2000], lv denied 95 NY2d 873 [2000]). We note in particular
Defendant contends that the court erred in allowing the People tо present evidence of a prior conviction by presenting testimony concerning the existence of defendant‘s fingerprints in the system. Defеndant failed to preserve that contention for our review (see
Defendant further contends that the court erred in refusing to suppress identification testimony on the ground that the photo array from which the identification was made was unduly suggestive. “Because the subjects depicted in the photo array [were] sufficiently similar in appearance sо that the viewer‘s attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection, the photo array was not unduly suggestive” (People v Gonzalez, 89 AD3d 1443, 1444 [2011], lv denied 19 NY3d 973 [2012], reconsideration denied 20 NY3d 932 [2012] [internal quotation marks omitted]). We also reject defendant‘s contention that the subsеquent lineup identification procedure was unduly suggestive (see generally People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).
Finally, defendant contends that he was denied effective assistance of counsel because defense counsel, inter alia, failed to make objections during trial and thereby failed to preserve several issues for appellate review. We reject that contention. As discussed above, defendant‘s unpreserved contentions are without merit, and “[a] dеfendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). With respect to the remaining alleged deficiencies on the part of defense counsel, we conclude that, viewing the record as a whole and as of the time of the representation, defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Smith, J.P., Sconiers, Valentino and Whalen, JJ.