People v. Alomar

• Decision Date: 30 December 1997
• Citation: 245 A.D.2d 219,666 N.Y.S.2d 408
• Parties: 1997 N.Y. Slip Op. 11,305 The PEOPLE of the State of New York, Respondent, v. Carlos ALOMAR, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 408

666 N.Y.S.2d 408

1997 N.Y. Slip Op. 11,305

The PEOPLE of the State of New York, Respondent, v. Carlos ALOMAR, Defendant-Appellant.

Supreme Court of New York, Appellate Division,

First Department.

Dec. 30, 1997.

Patricia Gaviria, for respondent.

David Blair-Loy, for defendant-appellant.

Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered January 19, 1990, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, affirmed.

Upon examination of the entire record, we conclude that defendant failed to establish a prima facie violation of Batson v. Kentucky (476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69), and that the People were therefore not required to explain their use of a portion of their peremptory challenges to strike Hispanic venirepersons (see, People v. Jenkins, 84 N.Y.2d 1001, 1003, 622 N.Y.S.2d 509, 646 N.E.2d 811; People v. Childress, 81 N.Y.2d 263, 267, 598 N.Y.S.2d 146, 614 N.E.2d 709). The original trial judge properly presided over the reconstruction hearing and thus the defendant's recusal motion was properly denied. Contrary to the dissent's characterization of the trial judge as a witness to the original voir dire proceedings, it is settled that, with regard to the procedure to be followed in reconstructing the record, "so far as possible the final arbiter of the record should be the Judge who presided at the original proceeding sought to be reviewed, if he is available....In such a proceeding he is not merely, or not at all, a witness; he is the official who certifies to the appellate court--if he can--what took place before him" (People v. Carney, 73 A.D.2d 9, 12, 425 N.Y.S.2d 323, reversed on other grounds 58 N.Y.2d 51, 457 N.Y.S.2d 776, 444 N.E.2d 26; People v. Butler, 75 A.D.2d 754, 427 N.Y.S.2d 636).

By failing to apprise the court that its no adverse inference charge went beyond the charge requested by defendant, or otherwise express any dissatisfaction with the charge, defendant has failed to preserve his present claims (People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677; People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212), and we decline to review them in the interest of justice (see, People v. Autry, 75 N.Y.2d 836, 552 N.Y.S.2d 908, 552 N.E.2d 156). Defendant's claims regarding the court's "two inferences" charge and its charge on asking the jury to come to an agreement "which speaks the truth" are unpreserved and, in any event, would not require reversal (People v. Arredondo, 226 A.D.2d 322, 323, 642 N.Y.S.2d 630, lv. denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350).

WALLACH, MAZZARELLI and ANDRIAS, JJ., concur.

MURPHY, P.J., dissents in a memorandum.

MURPHY, Presiding Justice (dissenting).

The trial judge was a witness to the proceedings upon which the adjudication of defendant's Batson claim was premised. As such, he ought not to have presided over the hearing to reconstruct those proceedings (see,...