Opinion
No. KA 03-01962.
November 17, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered August 25, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
Before: Present — Hurlbutt, J.P., Scudder, Gorski and Green, JJ.
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) and criminal possession of a weapon in the second degree (§ 265.03 [2]). Supreme Court properly admitted into evidence the sworn statement of a witness who refused to testify at trial. The People established by clear and convincing evidence at the Sirois hearing ( see Matter of Holtzman v Hellenbrand, 92 AD2d 405) that misconduct by defendant or others acting at his behest caused that witness to be unavailable to testify at defendant's trial ( see People v Chandler, 30 AD3d 161; see generally People v Geraci, 85 NY2d 359). The court properly exercised its discretion in precluding defendant from introducing reputation testimony and collateral evidence purportedly bearing on the credibility of that witness ( see generally People v Bosier, 6 NY3d 523, 528; Chandler, 30 AD3d at 162). The court also properly refused to permit defendant to introduce into evidence the hearsay testimony of a police detective regarding descriptions of the shooter provided by two witnesses who did not testify ( see generally People v Huertas, 75 NY2d 487, 492). Further, assuming that those descriptions constituted Brady material, we conclude that defendant had a meaningful opportunity to use that material and was thus not denied a fair trial by the timing of its delivery ( see People v Cortijo, 70 NY2d 868, 870; People v Concepcion, 262 AD2d 1058, lv denied 94 NY2d 821). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v Gray, 86 NY2d 10, 19), and the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). The court properly rejected defendant's Batson challenge to the prosecutor's use of a peremptory challenge with respect to an African-American prospective juror. "`The court was in the best position to observe the demeanor of the prospective juror and the prosecutor,' and its determination that the prosecutor's explanation was race-neutral and not pretextual is entitled to great deference" ( People v Lawrence, 23 AD3d 1039, 1039, lv denied 6 NY3d 835, quoting People v Williams, 13 AD3d 1214, 1215, lv denied 4 NY3d 857). Finally, the sentence is not unduly harsh or severe.