Opinion
1660
September 26, 2002.
Judgment of resentence, Supreme Court, New York County (Jeffrey Atlas, J.), rendered May 24, 2001, convicting defendant, after a jury trial, of 4 counts of murder in the second degree (2 counts of intentional murder and 2 counts of felony murder), and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.
SUSAN GLINER, for respondent.
WILLIAM A. LOEB, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Ellerin, Rubin, Friedman, JJ.
The court properly denied defendant's application made pursuant to Batson v. Kentucky ( 476 U.S. 79). The record supports the court's finding that defendant did not establish a prima facie case of discrimination (see People v. Jenkins, 84 N.Y.2d 1001; People v. Childress, 81 N.Y.2d 263, 267). The first-step prima facie case issue is not moot because, based on a fair reading of the record of the voir dire, we find that although the prosecutor offered explanations for the challenges at issue, the court never "ruled on the ultimate question of intentional discrimination." (Hernandez v. New York, 500 U.S. 352, 359). Almost immediately after finding that a prima facie case had been established, the court retracted that determination upon its realization that it had been premised on a factual mistake as to the prosecutor's exercise of challenges (see People v. Melendez, 269 A.D.2d 292, lv denied 95 N.Y.2d 868; see also People v. Ocasio, 253 A.D.2d 720, lv denied 92 N.Y.2d 1036).
Defendant's constitutional right to present a defense was not impaired by preclusion of a hearsay document. The court correctly concluded that the hearsay statement did not possess sufficient indicia of reliability (see People v. Robinson, 89 N.Y.2d 648, 654-657).
The court properly exercised its discretion in admitting photographs of the murder victims at the crime scene, since this evidence was probative of material issues and was not unduly inflammatory (see People v. Pobliner, 32 N.Y.2d 356, 370, cert denied 416 U.S. 905). Defendant's related challenge to certain summation remarks by the prosecutor is not preserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the comments at issue were proper responses to the defense summation.
The resentencing, at which the court clarified its original sentence by specifying that it was to run consecutively to an existing sentence, was not an improper alteration (see CPL 430.10). The court's original failure to specify whether its sentence was concurrent with or consecutive to the other sentence was inadvertent (compare People v. Adkinson, 88 N.Y.2d 561, 580-581, with People v. Minaya, 54 N.Y.2d 360, 364-365, cert denied 455 U.S. 1024), because the court had no reason to believe that it was necessary to make such a specification. The court was unaware that, due to defendant's incarceration on a parole violation, the Department of Correctional Services deemed the prior sentence to be still in existence so that, unless consecutive sentencing were specified, defendant would receive 15 years of credit toward the instant sentences. The court accurately stated that it was merely clarifying the record to reflect that no such leniency was intended or warranted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.