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

842
KA 10-01942
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWAYNE D. GARCIA, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered September 7, 2010. The judgment
convicted defendant, upon a jury verdict, of murder in the second
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 murder in the second degree (Penal Law § 125.25
[1]). Contrary to defendant’s contention, Supreme Court properly
denied his request to charge the jury on the lesser included offense
of manslaughter in the first degree (§ 125.20 [1]). An eyewitness
testified that the victim was seated on a porch listening to music
when defendant, who was on the steps, fired a single shot to the
victim’s head. Defendant admitted to the police that he shot the
victim in the head and killed him, and the Medical Examiner testified
that the “stippling” present on the victim’s body, i.e., unspent
gunpowder and small bits of metal, indicated that the shot was fired
from a distance of 1 to 1½ feet. We therefore conclude that there is
no reasonable view of the evidence that defendant intended to cause
serious physical injury but did not intend to kill the victim (see
People v Muhammad, 100 AD3d 1021, 1022, lv denied 20 NY3d 1102; see
generally People v Miller, 6 NY3d 295, 302; People v Glover, 57 NY2d
61, 64).

     Contrary to defendant’s further contention, the court properly
admitted in evidence photographs taken during the autopsy inasmuch as
they assisted the jury in understanding the Medical Examiner’s
testimony concerning the gunshot wound (see People v Trinidad, 107
AD3d 1432, 1432, lv denied 21 NY3d 1046). Defendant also contends
that the court abused its discretion in admitting photographs of the
                                 -2-                              842
                                                            KA 10-01942

victim taken at the crime scene because they were not relevant and
were highly prejudicial. We reject that contention (see People v
Pobliner, 32 NY2d 356, 369-370, rearg denied 33 NY2d 657, cert denied
416 US 905; see also People v Stevens, 76 NY2d 833, 835). In any
event, the evidence of defendant’s guilt is overwhelming, and there is
no significant probability that he would have been acquitted in the
absence of the photographs of the crime scene. We therefore conclude
that any error is harmless (see generally People v Crimmins, 36 NY2d
230, 241-242).

     We reject defendant’s contention that the court erred in denying
his Batson objections with respect to the use of peremptory challenges
for two prospective jurors. The court’s determination of Batson
objections is entitled to “great deference” (Batson v Kentucky, 476 US
79, 98 n 21; see People v Hernandez, 75 NY2d 350, 356, affd 500 US
352; People v Luciano, 10 NY3d 499, 505), and we conclude that the
court did not abuse its discretion in this case. With respect to one
of the prospective jurors, defendant failed to present “facts and
other relevant circumstances sufficient to raise an inference that the
prosecution used its peremptory challenge[] to exclude [the] potential
juror because of [her] race” (People v Childress, 81 NY2d 263, 266;
see People v Green, 60 AD3d 1320, 1321, lv denied 12 NY3d 915). With
respect to the second prospective juror, the court properly determined
that the prosecutor offered a race-neutral explanation for the
exercise of the peremptory challenge, i.e., that the prospective
juror’s brother had been imprisoned for a rape conviction (see People
v Johnson, 74 AD3d 1912, 1913; People v Jackson, 37 AD3d 1091, 1091,
lv denied 8 NY3d 946). Defendant failed to preserve for our review
his contention that the exercise of peremptory challenges for three of
four female African-American prospective jurors constituted a Batson
violation (see generally People v Cooley, 48 AD3d 1091, 1092, lv
denied 10 NY3d 861). In any event, we conclude that defendant’s
“numerical argument [is] unsupported by factual assertions or
comparisons that would serve as a basis for a prima facie case of
impermissible discrimination” (People v Brown, 97 NY2d 500, 508).

     Finally, the sentence is not unduly harsh or severe.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
