People v. Fortune

243 A.D.2d 646, 664 N.Y.S.2d 562, 1997 N.Y. App. Div. LEXIS 10182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (R. Goldberg, J.), rendered August 4, 1994, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant argues that the People used their peremptory challenges to strike black venirepersons in violation of Batson v Kentucky (476 US 79). However, review of the record reveals that the trial court properly determined that the defendant failed to sustain his ultimate burden of persuasion that the race-neutral reasons proffered by the People were pretextual (see, People v Payne, 88 NY2d 172; People v Allen, 86 NY2d 101).

Although several comments by the prosecutor would have been better left unsaid, the People’s summation did not deprive the defendant of a fair trial (see, People v Crimmins, 36 NY2d 230).

The defendant’s claim that he was denied effective assistance of counsel at trial because his attorney failed to discuss with him a plea agreement offered by the People concerns matters dehors the record and is not reviewable on direct appeal (see, People v Baldi, 54 NY2d 137; People v Richardson, 162 AD2d 557). Ritter, J. P., Friedmann, Krausman and McGinity, JJ., concur.