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

738
KA 13-00827
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VINCENT TORRES, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered May 10, 2013. The judgment convicted defendant,
upon a jury verdict, of burglary in the second degree, attempted
sodomy in the first degree (two counts), sodomy in the first degree
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 burglary in the second degree (Penal Law §
140.25 [2]), two counts of attempted sodomy in the first degree (§
110.00, former § 130.50 [1]), and one count each of sodomy in the
first degree (former § 130.50 [1]) and sexual abuse in the first
degree (§ 130.65 [1]). We reject defendant’s contention that County
Court erred in denying his Batson challenge. The court properly
determined that the prosecutor provided a race-neutral explanation for
excluding the prospective juror (see People v Tucker, 22 AD3d 353,
353-354, lv denied 6 NY3d 760; People v Williams, 13 AD3d 1214, 1214-
1215, lv denied 4 NY3d 857), and “defendant failed to meet [his]
‘ultimate burden of persuading the court’ that the People’s race-
neutral reasons for exercising a peremptory challenge with respect to
an African-American juror were pretextual” (People v Johnson, 38 AD3d
1327, 1328, lv denied 9 NY3d 866, quoting People v Smocum, 99 NY2d
418, 422). Defendant’s further contention that the court erred in sua
sponte dismissing a hearing-impaired prospective juror is not
preserved for our review (see CPL 470.05 [2]), and we decline to
exercise our power to address it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Defendant failed to preserve for our review his contention that
his conviction of one of the two counts of attempted sodomy in the
first degree is not supported by legally sufficient evidence (see
                                 -2-                           738
                                                         KA 13-00827

People v Gray, 86 NY2d 10, 19). In any event, we reject that
contention inasmuch as the evidence is legally sufficient to establish
that defendant’s “actions came within dangerous proximity” of
committing deviate sexual intercourse (People v Hamilton, 256 AD2d
922, 923, lv denied 93 NY2d 874; see Penal Law former §§ 130.00 [2],
130.50). We reject defendant’s contention that the court was required
to direct that certain sentences run concurrently rather than
consecutively pursuant to Penal Law § 70.25 (2). The victim’s
testimony established that, although part of a continuous course of
activity, the acts were separate and distinct (see People v Bailey, 17
AD3d 1022, 1023, lv denied 5 NY3d 803). Finally, the sentence, as
reduced by operation of law (see § 70.30 [1] [e] [vi]), is not unduly
harsh or severe.




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
