People v. Holloway

• Decision Date: 19 March 2010
• Citation: 897 N.Y.S.2d 373,71 A.D.3d 1486
• Parties: The PEOPLE of the State of New York, Respondent, v. Chad T. HOLLOWAY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 373

71 A.D.3d 1486

The PEOPLE of the State of New York, Respondent,

v.Chad T. HOLLOWAY, Defendant-Appellant.

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

March 19, 2010.

Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25[3] ), defendant contends that the prosecutor's reason for excluding two prospective jurors in response to his Batson challenge, i.e., that individuals who work in the field of education tend to be more "forgiving," was pretextual because the prospective jurors' employment did not relate to the facts of this case. Defendant did not challenge the prosecutor's reason for excluding those prospective jurors on that ground, and he therefore failed to preserve his contention forour review ( seePeople v. Cooley, 48 A.D.3d 1091, 1092, 851 N.Y.S.2d 771, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250; People v. Brown, 295 A.D.2d 442, 743 N.Y.S.2d 554, lv. denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190, 99 N.Y.2d 580, 755 N.Y.S.2d 716, 785 N.E.2d 738). In any event, we conclude that defendant's contention is without merit. Supreme Court properly determined that the prosecutor provided a race-neutral explanation for excluding the prospective jurors ( see People v. Thompson, 59 A.D.3d 1115, 1117, 873 N.Y.S.2d 834, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587, 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595).

We further conclude that the court properly denied defendant's request for an adverse inference charge. Defendant requested that charge based on the failure of the police to record his interrogation electronically. "[T]his Court has repeatedly determined[, however,] that the failure to record a defendant's interrogation electronically does not constitute a denial of due process" ( People v. Malave, 52 A.D.3d 1313, 1315, 860 N.Y.S.2d 365, lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103; see People v. Lomack, 63 A.D.3d 1658, 879 N.Y.S.2d 769, lv. denied 13 N.Y.3d 798, 887 N.Y.S.2d 547, 916 N.E.2d 442; People v. Mendez, 50 A.D.3d 1526, 856 N.Y.S.2d 766, lv. denied 11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661), and thus an adverse inference charge was not warranted ( see People v. Hammons, 68 A.D.3d 1800, 892 N.Y.S.2d 690; People v. Mastin, 261 A.D.2d 892, 894-895, 690 N.Y.S.2d 801, lv. denied 93...