Opinion
KA 99-1359
June 14, 2002.
Appeal from a judgment of Supreme Court, Monroe County, (Mark, J.), entered October 29, 1999, convicting defendant after a jury trial of, inter alia, murder in the second degree.
CRIMI CRIMI, ROCHESTER (JOSEPH P. CRIMI OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (ARTHUR G. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
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 of murder in the second degree (Penal Law § 125.25), robbery in the first degree (three counts) (§ 160.15 [1], [2], [4]) and robbery in the second degree (§ 160.10 [1]). Supreme Court properly rejected defendant's Batson claim with respect to the prosecutor's peremptory challenges to two potential jurors. We conclude that the prosecutor provided race-neutral reasons for excluding the two potential jurors ( see People v. Payne, 88 N.Y.2d 172, 181). To the limited extent that the contention of defendant that he was deprived of a fair trial because of the cumulative effects of the multiple jury trial is preserved for our review, that contention is premised upon speculation alone and thus provides no basis for reversal ( see People v. Irizarry, 193 A.D.2d 815, 815, affd 83 N.Y.2d 557). To the extent that defendant's contention is not preserved for our review ( see CPL 470.05), we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).
Defendant further contends that the court erred in failing to ask defendant at trial whether he wished to testify. We reject that contention ( see United States v. Janoe, 720 F.2d 1156, 1161, cert denied 465 U.S. 1036; see also People v. Doe, 186 A.D.2d 1036, 1036, lv denied 81 N.Y.2d 788). The verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Defendant's remaining contention is not preserved for our review ( see 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).