People v. Ball

11 A.D.3d 904, 782 N.Y.S.2d 228, 2004 N.Y. App. Div. LEXIS 11234

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Russell E Buscaglia, A.J.), rendered June 7, 2001. The judgment convicted defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [2]). We reject defendant’s contention that Supreme Court erred in determining that the People provided race-neutral explanations for exercising peremptory challenges with respect to three African-American prospective jurors (see generally Batson v Kentucky, 476 US 79 [1986]; People v Payne, 88 NY2d 172, 181 [1996]), i.e., that each had a relative who had been convicted of a crime and thus each would likely be sympathetic toward defendant (see People v Cuthrell, 284 AD2d 982, 982-983 [2001]). Also contrary to defendant’s contention, the record establishes that those peremptory challenges were consistent with the People’s other peremptory challenges (see People v Welch, 2 AD3d 1354, 1358 [2003], lv denied 2 NY3d 747 [2004]).

We also reject the contention of defendant that the testimony of his accomplices is not supported by the requisite corroborative evidence (see CPL 60.22 [1]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The testimony of the two codefendants describing defendant’s participation in the crimes was sufficiently corroborated by evidence connecting defendant “with the crime[s] in such a way that the jury may [have been] reasonably satisfied that the accomplice [s were] telling the truth” (People v Adams, 222 AD2d 1093, 1093 [1995], lv denied 88 NY2d 844 [1996]; see generally People v Breland, 83 NY2d 286, 292-293 [1994]). Also contrary to defendant’s contention, the verdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495).

Defendant failed to preserve for our review his contention that the court erred in failing to disclose the names of the witnesses to be called at the Wade hearing (see CPL 470.05 [2]). “Defendant cannot rely upon the objection of the attorney for [a] codefendant to preserve an issue for [our] review” (People v Neil, 213 AD2d 1014, 1014 [1995], lv denied 86 NY2d 783 [1995]). In any event, defendant’s contention is without merit (see People v Ayala, 275 AD2d 679, 680 [2000], lv denied 95 NY2d 960 [2000]). The court also properly exercised its discretion in withholding the addresses and telephone numbers of trial witnesses because defendant failed to demonstrate a “material need” for the information requested (People v Miller, 106 AD2d 787, 788 [1984]; see People v Estrada, 1 AD3d 928, 929 [2003], lv denied 1 NY3d 627 [2004]).

Defendant failed to preserve for our review his further contention that he was denied a fair trial by the prosecutor’s remarks during summation (see CPL 470.05 [2]) and, in any event, that contention is without merit (see People v Kelly, 309 AD2d 1149, 1150 [2003], lv denied 1 NY3d 575 [2003]). Finally, the sentence is not unduly harsh or severe. Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.