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

609
KA 12-01628
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMUEL CARL SIMMONS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered July 6, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, criminal
sexual act in the first degree (two counts) and sexual abuse in the
first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of criminal sexual act in the first
degree (Penal Law § 130.50 [1]), and one count each of rape in the
first degree (§ 130.35 [1]) and sexual abuse in the first degree (§
130.65 [1]). Defendant failed to preserve for our review his
contention that the prosecutor’s reason for striking a prospective
juror was pretextual, “having failed to raise before [Supreme Court]
the specific claim he now raises on appeal” (People v Ali, 89 AD3d
1412, 1414, lv denied 18 NY3d 881; see People v Jones, 284 AD2d 46,
48, affd 99 NY2d 264; People v Holloway, 71 AD3d 1486, 1486-1487, lv
denied 15 NY3d 774). In any event, defendant failed to meet his
burden of establishing, with respect to the third step of the Batson
analysis, that the People engaged in the discriminatory use of
peremptory challenges (see Batson v Kentucky, 476 US 79, 94-98; People
v Hecker, 15 NY3d 625, 634-635, cert denied ___ US ___, 131 S Ct
2117). “Specifically, defense counsel did not compare the challenged
juror[] to similarly-situated unchallenged prospective jurors, point
to factors in the challenged juror[’s] background that made [her]
likely to be pro-prosecution, or enunciate any factor that suggested
that the prosecutor exercised the challenge[] due to the prospective
juror[’s]” race (People v MacShane, 11 NY3d 841, 842; see People v
Donahue, 81 AD3d 1348, 1350, lv denied 16 NY3d 894).
                                 -2-                              609
                                                            KA 12-01628

     Defendant further contends that the court was required to excuse,
sua sponte, a prospective juror who did not unequivocally state that
he could be impartial. “By failing to raise that challenge in the
trial court, however, defendant failed to preserve it for our review”
(People v Stepney, 93 AD3d 1297, 1297-1298, lv denied 19 NY3d 968).
In any event, “[e]ven assuming, arguendo, that the court erred in
[refusing to excuse, sua sponte, the prospective juror] for cause, we
conclude that the error does not require reversal because defendant
had not exhausted his peremptory challenges and did not peremptorily
challenge that prospective juror” (People v Arguinzoni, 48 AD3d 1239,
1241, lv denied 10 NY3d 859; see CPL 270.20 [2]; People v Irvin, 111
AD3d 1294, 1295; People v Brown, 101 AD3d 1627, 1628). Defendant also
contends that he was denied effective assistance of counsel because
his attorney failed to exercise a for-cause or peremptory challenge
with respect to that prospective juror. Defendant, however, has not
met “his burden of showing the absence of a legitimate explanation for
th[at] perceived error” (People v Barboni, 21 NY3d 393, 407; see
People v Reed, 115 AD3d 1334, 1336-1337; Irvin, 111 AD3d at 1296;
Stepney, 93 AD3d at 1298).

     Finally, the sentence is not unduly harsh or severe.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
