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People v. Tapper

64 A.D.3d 620 Court N.Y. App. Div. Decision date 2009-07-07 English

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p. 620
The People of the State of New York, Respondent, v Desmond Tapper, Appellant.
[883 NYS2d 250]

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered November 21, 2005, convicting him of criminal possession of a weapon in the third degree and unlawful wearing of a body vest, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly granted the People’s reverse-Batson challenge (see Batson v Kentucky, 476 US 79 [1986]; People v Luciano, 10 NY3d

p. 621
499 , 502-503 [2008]). The trial court’s determination that the proffered reason for challenging the juror in question, that she had previously served on a jury, was pretextual, is entitled to great deference and is supported by the record (see People v Quito, 43 AD3d 411 , 412-413 [2007]; People v Richie, 217 AD2d 84 , 89 [1995]).

The trial court providently exercised its discretion in denying the defendant’s challenge for cause to a potential juror (see People v Franklin, 7 AD3d 966 , 967 [2004]). Even if a prima facie showing of actual bias had been made (see People v Torpey, 63 NY2d 361 , 367 [1984]), her unequivocal answers demonstrated that she could be fair and impartial (see People v Chambers, 97 NY2d 417 , 419 [2002]; People v Johnson, 278 AD2d 245 [2000]).

The defendant’s contention that the prosecutor violated the unsworn witness rule during the prosecutor’s cross-examination of him and during summation is unpreserved for appellate review and, in any event, is without merit (see People v Paperno, 54 NY2d 294 , 302 [1981]; People v Rivera, 27 AD3d 491 , 492 [2006]; People v Blackwood, 295 AD2d 292 , 293 [2002]).

The defendant’s challenge to certain remarks made by the prosecutor during summation is unpreserved for appellate review (see People v Hollenquest, 48 AD3d 592 , 593 [2008]). In any event, the remarks either were fair comment, were within the permissible bounds of rhetorical comment, or do not warrant reversal (see People v Galloway, 54 NY2d 396 , 401 [1981]; People v Wright, 40 AD3d 1021 [2007]; People v Heide, 206 AD2d 875 [1994], affd 84 NY2d 943 [1994]).

On this record, we cannot conclude that the defendant was denied effective assistance of counsel (see Strickland v Washington, 466 US 668 [1984]; People v Steele, 135 AD2d 673 [1987]). Rivera, J.P, Spolzino, Angiolillo and Balkin, JJ., concur.

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