People v. McCauley

19 A.D.3d 1130, 796 N.Y.S.2d 488, 2005 N.Y. App. Div. LEXIS 6353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2005
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered April 15, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree (two counts) and criminal possession of a weapon in the fourth 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 upon a jury verdict of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]) and one count of criminal possession of a weapon in the fourth degree (§ 265.01 [4]). Supreme Court properly denied defendant’s Batson motion. The People provided race-neutral explanations for exercising peremptory challenges to the prospective jurors in question (see People v Ball, 11 AD3d 904, 905 [2004], lv denied 3 NY3d 755, 4 NY3d 741 [2004]; People v Linen, 5 AD3d 1022, 1022-1023 [2004]; People v Harris, 1 AD3d 881, 882 [2003], lv denied 2 NY3d 740 [2004]), and defendant failed to meet his burden of establishing that those explanations were pretextual (see Harris, 1 AD3d at 882; People v Welch, 298 AD2d 903 [2002], lv denied 99 NY2d 565 [2002]; see generally People v Smocum, 99 NY2d 418, 422 [2003]). Defendant failed to preserve for our review his further contention that the court erred in failing to give a circumstantial evidence charge (see CPL 470.05 [2]; People v Wheeler, 284 AD2d 973 [2001], lv denied 96 NY2d 909 [2001]; People v Congelosi, 266 AD2d 930, 931 [1999], lv denied 94 NY2d 902 [2000], 95 NY2d 794 [2000]). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see Wheeler, 284 AD2d at 973-974; Congelosi, 266 AD2d at 931).

Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Jones, 13 AD3d 1192 [2004], lv denied 4 NY3d 799 [2005]; People v Barlow, 8 AD3d 1027, 1028 [2004], lv denied 3 NY3d 657 [2004]). In any event, we conclude that the prosecutor’s remarks constituted fair comment upon the evidence, to which there was no objection, that defendant was carrying a large sum of cash (see generally People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v White, 291 AD2d 842, 843 [2002], lv denied 98 NY2d 656 [2002]). In addition, we note that defense counsel’s summation highlighted the issue of the cash in defendant’s possession, and thus the prosecutor’s remarks were a fair response to the summation of defense counsel (see People v Melendez, 11 AD3d 983, 984 [2004]; People v Kelly, 309 AD2d 1149, 1150 [2003], lv denied 1 NY3d 575 [2003]; People v Sinclair, 231 AD2d 926 [1996]). Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.