        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

540
KA 12-01248
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. ROSS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 12, 2012. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of attempted murder in the second degree (Penal Law §§
110.00, 125.25 [1]) and criminal possession of a weapon in the third
degree (§ 265.02 [1], [2]), defendant contends that Supreme Court
erred in denying his Batson challenge. The challenge was made with
respect to an African-American male prospective juror who was
peremptorily struck from the venire panel by the prosecutor. In
response to the challenge, the prosecutor offered two race-neutral
reasons for striking the prospective juror, and defendant did not
contend that those reasons were pretextual. Defendant thus failed to
preserve his contention for our review (see People v Jackson, 57 AD3d
1463, 1464, lv denied 12 NY3d 817; People v Cooley, 48 AD3d 1091,
1092, lv denied 10 NY3d 861).

     In any event, by denying defendant’s Batson challenge, the court
“thereby implicitly determined” that the race-neutral explanations
given by the prosecutor for striking the prospective juror were not
pretextual (People v Parker, 304 AD2d 146, 156-157, lv denied 100 NY2d
585), and the court was in the best position to determine whether the
prosecutor was being truthful (see People v Lawrence, 23 AD3d 1039,
1039, lv denied 6 NY3d 835; People v Williams, 13 AD3d 1214, 1215, lv
denied 4 NY3d 857). We note that the prosecutor struck Caucasian
prospective jurors for the same reasons he claimed to have struck the
African-American prospective juror in question. There is therefore no
                                 -2-                           540
                                                         KA 12-01248

basis in the record for us to conclude that the prosecutor struck the
prospective juror because of his race.

     Defendant further contends that the court erred in failing to
suppress statements he made during telephone calls that he initiated
while in jail awaiting trial. According to defendant, his telephone
calls should not have been recorded without an eavesdropping warrant.
We reject that contention. “[A]n eavesdropping warrant is not
required when one of the parties to the conversation consents to the
eavesdropping” (People v Koonce, 111 AD3d 1277, 1279; see People v
Lasher, 58 NY2d 962, 963; People v Wood, 299 AD2d 739, 740-741, lv
denied 99 NY2d 621) and, here, defendant “impliedly consented to the
recording[s]” inasmuch as he was notified via a recorded message that
telephone calls are subject to monitoring and recording (Koonce, 111
AD3d at 1279).

     Finally, we reject defendant’s challenges to the sufficiency and
weight of the evidence. Defendant concedes that he twice fired his
.22 caliber rifle after exchanging words with the victim, but he
contends that he aimed toward the sky and intended only to scare the
victim. The victim testified, however, that defendant fired six shots
at him, one of which almost struck his head and another of which was
deflected by the cell phone in his coat pocket, and the police found
five shell casings in the area where the shooting occurred. Although
the victim discarded his coat and cell phone while running away from
defendant, and the police could not find either item, the victim had a
welt on the left side of his abdomen where the cell phone had been
located. Moreover, two eyewitnesses testified that defendant appeared
to aim the gun directly at the victim. Although those witnesses are
related to the victim, the “credibility of the witnesses was an issue
for the jury to determine, and we perceive no basis for disturbing
that determination” (People v Newman, 87 AD3d 1348, 1350, lv denied 18
NY3d 926; see People v Shelton, 111 AD3d 1334, 1336). In addition,
defendant made an incriminating statement to the police after he had
been arrested. When asked if he knew why he was at the police
station, defendant said that he had “shot at some white boy.”

     Viewing the above evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we conclude that
“ ‘there is a valid line of reasoning and permissible inferences from
which a rational jury could have found the elements of the crime[s]
proved beyond a reasonable doubt’ ” (People v Danielson, 9 NY3d 342,
349; see generally People v Bleakley, 69 NY2d 490, 495). Viewing the
evidence in light of the elements of the crimes as charged to the jury
(see Danielson, 9 NY3d at 349), we further conclude that the verdict
is not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
