People v. Owens

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Owens, 653 N.Y.S.2d 107, 235 A.D.2d 268 (N.Y. App. Div. 1997)
• Decision Date: 16 January 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry OWENS, Defendant-Appellant.

Page 107

653 N.Y.S.2d 107

235 A.D.2d 268

The PEOPLE of the State of New York, Respondent, v. Terry OWENS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 16, 1997.

Gina M. Mignola, for Respondent.

Edward J. Ungvarsky, for Defendant-Appellant.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered June 23, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, 8 years to life, and 6 years to life, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the second-degree weapon possession conviction to a term of 20 years to life and otherwise affirmed.

Defendant's claim that the prosecutor's explanations for the exercise of certain peremptory challenges were pretextual is unpreserved (People v. Rivera, 225 A.D.2d 392, 640 N.Y.S.2d 483, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355). Were we to review this claim in the interest of justice, we would find that the record supports the trial court's implicit finding (see, People v. Chipp, 75 N.Y.2d 327, 329, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70) that the prosecutor's race-neutral explanations were non-pretextual. The prosecutor manifestly did not engage in disparate treatment of similarly situated venirepersons. Since defendant did not request that the voir dire be recorded, his present claim in that regard is likewise unpreserved. In any event, the available record is sufficient for appellate review of defendant's claim (see, People v. Harrison, 85 N.Y.2d 794, 628 N.Y.S.2d 939, 652 N.E.2d...