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

710
KA 11-00940
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY L. NEWTON, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered March 7, 2011. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree
and gang assault 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 manslaughter in the first degree (Penal Law
§ 125.20 [1]) and gang assault in the first degree (§ 120.07).
Contrary to defendant’s contention, Supreme Court properly denied his
Batson challenge with respect to prospective juror number two.
Defendant failed to meet his prima facie burden of establishing that
the prosecutor exercised the peremptory challenge in a discriminatory
manner (see generally People v Smocum, 99 NY2d 418, 421). Defendant’s
assertion that “there wasn’t anything obvious . . . in her responses
that would seem to make her favorable to the defense,” “standing
alone, [is] generally insufficient to establish a prima facie case of
discrimination” (People v MacShane, 11 NY3d 841, 842; see People v
May, 125 AD3d 1465, 1466, lv denied 25 NY3d 1204).

     We reject defendant’s contention that the court abused its
discretion in discharging a sworn juror based upon a medical emergency
involving the juror’s grandmother (see People v Barkley, 66 AD3d 1432,
1432, lv denied 13 NY3d 905), after having made the requisite
“reasonably thorough inquiry” in determining that the juror was
unavailable for continued service (CPL 270.35 [2] [a]).

     Contrary to defendant’s further contention, we conclude that the
court did not abuse its discretion in concluding that the prejudicial
effect of the jury learning that defendant was incarcerated was
                                 -2-                           710
                                                         KA 11-00940

outweighed by the probative value of the People’s evidence of
defendant’s statements in a recorded jailhouse telephone conversation
(see generally People v Jenkins, 88 NY2d 948, 950). We further
conclude that, when viewed in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Finally, the sentence is not
unduly harsh or severe.




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
