People v. Benn

• Decision Date: 02 November 2022
• Docket Number: 2018–07006,Ind. No. 2168/16
• Parties: The PEOPLE, etc., respondent, v. Sherwin R. BENN, appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 690
177 N.Y.S.3d 696

The PEOPLE, etc., respondent,
v.
Sherwin R. BENN, appellant.

2018–07006
Ind. No. 2168/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 6, 2022
November 2, 2022

Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Rebecca Nealon of counsel), for respondent.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

177 N.Y.S.3d 697

DECISION & ORDER

210 A.D.3d 690

Appeal by the defendant from a judgment of the Supreme

210 A.D.3d 691

Court, Queens County (John F. Zoll, J.), rendered May 9, 2018, convicting him of robbery in the first degree, assault in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In September 2016, the defendant was arrested in connection with the assault and robbery of the complainant. After a jury trial, the defendant was convicted of robbery in the first degree, assault in the first degree, and assault in the second degree.

The defendant contends that the Supreme Court erred in granting the People's reverse Batson -Kern application (see Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 657–658, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ) with respect to one prospective juror. Contrary to the defendant's contention, the record demonstrates that the court conducted the proper three-step Batson analysis and supports its determination that defense counsel's proffered reason challenging the subject prospective juror was pretextual. Thus, we decline to disturb the court's determination that the challenge was pretextual as to the subject prospective juror (see People v. Gainer, 207 A.D.3d 745, 746, 172 N.Y.S.3d 454 ; People v. Abney, 202 A.D.3d 811, 158 N.Y.S.3d 863 ; People v. Brown, 129 A.D.3d 854, 856, 11 N.Y.S.3d 616 ).

The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, ...