People v. Brown

216 A.D.2d 904, 628 N.Y.S.2d 982, 1995 N.Y. App. Div. LEXIS 7228

Opinions

Judgment affirmed. Memorandum: Defendant contends that the prosecutor improperly exercised a peremptory challenge on the basis of race (see, Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420). Even assuming, arguendo, that defendant made a prima facie showing of discrimination, we conclude that the prosecutor came forward with a race-neutral explanation for having exercised that peremptory challenge (see, People v Childress, 81 NY2d 263, 266; People v Hernandez, 75 NY2d 350, 355, affd 500 US 352). The contention that prosecutorial misconduct on summation deprived defendant of a fair trial is unpreserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

We reject defendant’s further contention that the trial court’s supplemental instruction to the jury concerning the charge of burglary in the third degree requires reversal. Defendant contends that the supplemental instruction changed without notice the People’s theory of the crime that defendant intended to commit upon entering the building from petit larceny to theft of services and raised issues not addressed by the proof. The People were not required to specify the crime that defendant intended to commit upon entering the building (see, People v Mackey, 49 NY2d 274, 278-279). They did not specify a crime, and, a fortiori, they were not required to give notice of a possible crime that was raised for the first time by the trial testimony of defendant. Defendant’s further contention that the supplemental charge raised issues not addressed by the proof is related to the legal sufficiency of the proof of burglary, not the propriety of the supplemental charge. In his separate argument on legal sufficiency, however, defendant does not address the use of the air hose; he contends only that the proof of intent to take money when he entered the building is legally insufficient.

We have examined defendant’s remaining contentions and conclude that they are lacking in merit.

All concur except Boehm, J., who dissents in part and votes to modify in the following Memorandum.