People v. Wood — 117 A.D.3d 888

Majority

p. 888

The People of the State of New York, Respondent, v Zenell Wood, Appellant.

[985 NYS2d 724]

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered March 23, 2011, convicting him of attempted murder in the second degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the prosecutor offered a race-neutral explanation for exercising a peremptory challenge as to prospective juror number six in the third round of jury selection (see Purkett v Elem, 514 US 765 , 767-768 [1995]). The burden then shifted to the defendant to demonstrate that the proffered explanation was a pretext for discrimination, and he failed to carry that burden (see People v Norris, 98 AD3d 586 [2012]; People v Celestine, 243 AD2d 485 , 486 [1997]). The defendant’s challenge to the prosecutor’s use of a peremptory challenge as to prospective juror number 18 in the first round of jury selection is unpreserved for appellate review (see People v Lugo, 69 AD3d 654 [2010]; People v Patterson, 40 AD3d 659 [2007]), and, in any event, without merit (see People v Richie, 217 AD2d 84 , 89 [1995]).

The Supreme Court properly admitted into evidence certain

p. 889

recorded telephone conversations in which the defendant tried to dissuade a witness from testifying at his trial, as that evidence constituted consciousness of guilt (see People v Shilitano, 218 NY 161 , 179 [1916]; People v Marcus, 101 AD3d 1046 , 1048 [2012]; People v Haigler, 44 AD3d 329 [2007]). The defendant’s contention that the admission of this evidence violated his right of confrontation is without merit (see generally Crawford v Washington, 541 US 36 [2004]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit.

Mastro, J.P, Chambers, Lott and Duffy, JJ., concur.

Cases cited

Purkett v. Elem 514 US 765 SCOTUS 1995-05-15 at 767-768 p. 888
People v. Norris 98 AD3d 586 N.Y. App. Div. 2012-08-08 p. 888
People v. Richie 217 AD2d 84 N.Y. App. Div. 1995-12-18 at 89 p. 888
People v. Marcus 101 AD3d 1046 N.Y. App. Div. 2012-12-19 at 1048 p. 889
People v. Haigler 44 AD3d 329 N.Y. App. Div. 2007-10-04 p. 889
Crawford v. Washington 541 US 36 SCOTUS 2004-03-08 p. 889
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 889
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 p. 889
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 889
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 889
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 889
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 889