People v. Murphy

• Decision Date: 23 December 2010
• Citation: 79 A.D.3d 1451,913 N.Y.S.2d 815
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin MURPHY, Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 815
79 A.D.3d 1451

The PEOPLE of the State of New York, Respondent,
v.
Kevin MURPHY, Appellant.

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

Dec. 23, 2010.

913 N.Y.S.2d 816

Mitch Kessler, Cohoes, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: CARDONA, P.J., PETERS, SPAIN, KAVANAGH and EGAN JR., JJ.

CARDONA, P.J.

79 A.D.3d 1451

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 18, 2009, upon a verdict convicting defendant of the crime of manslaughter in the second degree.

On the night of April 29, 2006 and into the early morning hours of April 30, 2006, defendant was engaged in two incidents with Joseph Jerome on Hudson Avenue in the City of Albany. Jerome's companions, Hector Perez and Rob Desantola, were also present. During the first encounter, defendant exchanged words with the group on the sidewalk outside his home. Perez then punched defendant twice, knocking him down and injuring his lip. The second encounter occurred shortly thereafter when Jerome, Perez and Desantola returned to the area outside defendant's home. During that encounter, defendant fatally stabbed Jerome. The details surrounding both incidents are sharply disputed.

Defendant was convicted of murder in the second degree. Subsequently, this Court reversed that conviction on the ground that the admission into evidence of certain tape-recorded statements by defendant, in conjunction with other circumstances at the trial, violated defendant's right against self-incrimination and right to counsel, and we remitted the matter for a new trial (51 A.D.3d 1057, 856 N.Y.S.2d 713 [2008], lv. denied

79 A.D.3d 1452

11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ). Following a retrial, defendant was convicted

913 N.Y.S.2d 817

of manslaughter in the second degree and sentenced to 5 to 15 years in prison. He now appeals, and we affirm.

Initially, we are not persuaded by defendant's contention that County Court should have denied the People's reverse- Batson objection to his peremptory challenge of an African-American juror. While defense counsel offered a race-neutral explanation for the challenge-specifically, that the juror indicated that one of the reasons she kept a dog was for security-our review of the record supports the court's factual finding that the reason was pretextual ( see People v. Hecker, 15 N.Y.3d 625, ---- - ----, ---N.Y.S.2d ----, --- N.E.2d ---- [2010]; People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003]; People v. Knowles, 79 A.D.3d 16, 911 N.Y.S.2d 483, 487-488 [2010]; People v. Fulton, 24 A.D.3d 959, 962, 807 N.Y.S.2d 153 [2005], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006], cert. denied 549 U.S. 1037, 127 S.Ct. 591, 166 L.Ed.2d 440 [2006] ). In particular, we note that defense counsel had stricken every other African-American juror up to that point, and the court had previously put counsel "on notice" and warned him that his proffered explanation as to one of those jurors was only "marginally acceptable." Under these circumstances, and mindful that the court's evaluation of counsel's motivation in making the specific challenge at issue herein turned largely on its assessment of counsel's credibility, which is entitled to great deference ( see People v. Hecker, 15 N.Y.3d...