People v Dale Gales

People v Gales 2006 NY Slip Op 03272 [28 AD3d 1163] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent, v Dale Gales, Appellant.

—[*1]Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 14, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Defendant failed to preserve for our review his contention that County Court "did not follow the requisite three-step procedure in evaluating his Batson challenge[ ]" (People v Parker, 304 AD2d 146, 156 [2003], lv denied 100 NY2d 585 [2003]; see People v De Los Angeles, 270 AD2d 196, 198 [2000], lv denied 95 NY2d 889 [2000]). In any event, in denying defendant's Batson challenge the court implicitly determined that the prosecutor's proffered reason for excusing the prospective juror at issue was not pretextual, and that determination is entitled to great deference (see People v Dandridge, 26 AD3d 779 [2006]; Parker, 304 AD2d at 156-157). Also unpreserved for our review is defendant's challenge to the admission of testimony that defendant threatened a prosecution witness immediately before the trial began (see CPL 470.05 [2]), and defendant in addition failed to preserve for our review his challenge to the sufficiency of the evidence concerning the chain of custody with respect to the gun (see People v Mateo, 282 AD2d 398 [2001], lv denied 96 NY2d 904 [2001]; People v Moore, 248 AD2d 405 [1998], lv denied 91 NY2d 1010 [1998]; People v Rivera, 213 AD2d 281, 282 [1995], lv denied 86 NY2d 740 [1995]). We decline to exercise our power to address those challenges as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). [*2]Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.