                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 14, 2016                      106644
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

EFRAIN J. ACEVEDO III,
                    Appellant.
________________________________


Calendar Date:    May 27, 2016

Before:    McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.

                              __________


     Danielle Neroni Reilly, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

                              __________


Rose, J.

      Appeal   from a judgment of the County Court of Albany County
(Lynch, J.),   rendered May 9, 2014, upon verdicts convicting
defendant of   the crimes of criminal possession of a controlled
substance in   the third degree and criminal possession of
marihuana in   the fourth degree.

      On October 30, 2012, hospital staff at Albany Medical
Center responded to a report of an odor of burning marihuana and
traced that odor to defendant's room. When questioned by
hospital security, defendant allegedly admitted to smoking
marihuana and to having more of it in his backpack, prompting the
search of his backpack and the discovery of more than two ounces
of marihuana inside. Hospital security then searched defendant's
jacket and discovered over one-half ounce of crack cocaine.
                              -2-                106644

Police officers were ultimately called to the hospital and
discovered over $5,000 inside of defendant's pillowcase. As a
result, defendant was charged in a four-count indictment with
criminal possession of a controlled substance in the third degree
(two counts), criminal possession of marihuana in the fourth
degree and criminally using drug paraphernalia in the second
degree. Following a jury trial, he was acquitted of one count of
criminal possession of a controlled substance in the third
degree, which required proof of his possession of crack with the
intent to sell it. He was also acquitted of criminally using
drug paraphernalia in the second degree and convicted of criminal
possession of marihuana in the fourth degree. The jury was,
however, unable to reach a verdict on the second count of
criminal possession of a controlled substance in the third
degree, which required proof that he possessed one-half ounce or
more of crack. Following a second jury trial, defendant was
convicted of that charge. He was subsequently sentenced to an
aggregate prison term of three years, to be followed by two years
of postrelease supervision. Defendant now appeals.

      We find merit in defendant's contention that County Court
erred in denying his request to charge the lesser included
offense of unlawful possession of marihuana. The People properly
concede that unlawful possession of marihuana is a lesser
included offense of criminal possession of marihuana in the
fourth degree (see Penal Law §§ 221.05, 221.15). Thus, our
inquiry distills to whether "'there is a reasonable view of the
evidence which would support a finding that . . . defendant
committed such lesser offense but did not commit the greater'"
(People v Colville, 20 NY3d 20, 31 [2012], quoting CPL 300.50
[1]; see People v Williams, 138 AD3d 1233, 1237 [2016]). In
evaluating this question, we must view the evidence in the light
most favorable to defendant and assess whether "'there is . . .
some identifiable, rational basis on which the jury could reject
a portion of the prosecution's case which is indispensable to
establishment of the higher crime and yet accept so much of the
proof as would establish the lesser crime'" (People v Rivera, 23
NY3d 112, 121 [2014], quoting People v Scarborough, 49 NY2d 364,
369-370 [1980]; accord People v Grayson, 138 AD3d 1250, 1251
[2016]).
                               -3-                106644

      Here, we find that the jury could have accepted portions of
each witness's testimony, while rejecting other portions, and
arrived at the conclusion that defendant committed the lesser
offense but not the greater. Based upon our review of the
record, we find that the evidence of the odor of marihuana that
led hospital staff to defendant's room plus his admission to
smoking marihuana in his room could lead a rational factfinder to
conclude that defendant possessed a small amount of marihuana
that he had smoked in the hospital, but that he was not aware of
the larger amount of marihuana that was discovered in his
backpack that had been delivered to his room by family members
after his admission to the hospital. Accordingly, we must
reverse his conviction for criminal possession of marihuana in
the fourth degree and remit for a new trial on that charge
(see People v Carota, 93 AD3d 1072, 1076 [2012]; People v Rivera,
70 AD3d 1177, 1183-1184 [2010], lvs denied 14 NY3d 855, 891
[2010]; People v Ryan, 55 AD3d 960, 964 [2008]). As a result of
this conclusion, defendant's remaining challenges to his
conviction for criminal possession of marihuana in the fourth
degree are rendered academic.

      Turning to defendant's conviction of criminal possession of
a controlled substance in the third degree, defendant contends
that the People violated his equal protection rights pursuant to
Batson v Kentucky (476 US 79 [1986]) by using peremptory
challenges to remove two nonwhite members of the second panel of
prospective jurors1 – namely, juror No. 2 and juror No. 14 – and
that County Court improperly compressed the Batson inquiry. When
a party raises a Batson challenge, courts engage in a three-step
process (see People v Hecker, 15 NY3d 625, 634-635 [2010], cert
denied 563 US 947 [2011]; People v Smocum 99 NY2d 418, 421-422
[2003]). "At step one, the moving party bears the burden of
establishing a prima facie case of discrimination in the exercise
of peremptory challenges. Once a prima facie case of
discrimination has been established, the burden shifts, at step
two, to the nonmoving party to offer a facially neutral
explanation for each suspect challenge. At the third step, the


     1
        As noted by County Court, the People did not use a
peremptory challenge to remove a third nonwhite juror.
                              -4-                106644

burden shifts back to the moving party to prove purposeful
discrimination and the trial court must determine whether the
proffered reasons are pretextual" (People v Jones, 136 AD3d 1153,
1157-1158 [2016] [internal quotation marks and citations
omitted], lv denied 27 NY3d 1000 [2016]; see People v Allen, 86
NY2d 101, 109-110 [1995]). While the step-two determination
focuses only on the facial neutrality of the explanation, the
step-three determination "is a question of fact, focused on the
credibility of the race-neutral reasons," and it is incumbent on
the moving party "to make a record that would support a finding
of pretext" at step three (People v Smocum, 99 NY2d at 422;
see People v James, 99 NY2d 264, 271-272 [2002]; People v Payne,
88 NY2d 172, 183-184 [1996]). Stated differently, after the
trial court accepts the nonmoving party's race-neutral reasons,
"the moving party must make a specific objection to the exclusion
of any juror still claimed to have been the object of
discrimination" (People v James, 99 NY2d at 272).

      Inasmuch as the People offered facially race-neutral
reasons for the use of their peremptory challenges at step two,
the sufficiency of defendant's step one showing is now moot (see
People v Grafton, 132 AD3d 1065, 1067 [2015], lvs denied 26 NY3d
1145, 1147 [2016]; People v Knowles, 79 AD3d 16, 20 [2010], lv
denied 16 NY3d 896 [2011]). As to juror No. 2, the People based
their peremptory challenge on his perceived inattentiveness,
explaining that they "had to get his attention several times"
during voir dire and "dr[a]w him in" because "he was out in
thought somewhere." We are mindful that "[t]he explanation at
step two is not required to be persuasive or even plausible; as
long as the reasons for the challenges are facially neutral, even
ill-founded reasons will suffice" (People v Grafton, 132 AD3d at
1066 [internal quotation marks and citations omitted]; see People
v Smocum, 99 NY2d at 422; People v Allen, 86 NY2d at 109-110).
Here, the People's explanation was facially neutral, as it
reflected their concern regarding juror No. 2's inattentive
demeanor (see People v Miles, 55 AD3d 307, 308 [2008], lv
denied 11 NY3d 928 [2009]).

      Regarding juror No. 14, the People stated that they did not
want her on the jury because she believed that "she was a victim
of racial profiling." Contrary to defendant's argument on
                              -5-                106644

appeal, the record establishes that juror No. 14's statement was
in response to a race-neutral question posed by the People –
specifically, whether she felt "like [she was] targeted or . . .
that [she] caught a break," when she had previously been accused
of a crime that was ultimately dismissed – and it was the juror
herself who interjected the element of race into her answer
(compare People v Mallory, 121 AD3d 1566, 1567 [2014]).2 Thus,
here too, the People's proffered reason was sufficient to shift
the burden to defendant, as it was "based on something other than
the race of" juror No. 14 (People v Hecker, 15 NY3d at 655
[internal quotation marks and citation omitted]; see People v
Allen, 86 NY2d at 110).

      Following the People's step-two proffer, County Court
denied the Batson challenge, without any attempt to respond or
protestation registered by defendant. Now, on appeal, defendant
contends for the first time that County Court erred in failing to
conduct a step-three inquiry. However, "[b]y accepting the
People's explanation without any additional objection at a time


    2
         The dissent characterizes the question posed by the
People as unique, reasoning that juror No. 14 was the only
prospective juror asked about "target[ing]." The record reveals,
however, that juror No. 14 was the only prospective juror asked
this question because she was the only one who had been
previously charged with a crime and had not expressed any ill
will toward the People during questioning by County Court. To
this end, three other prospective jurors also stated that they
had previously been charged or convicted of crimes; however, they
indicated during questioning by County Court – i.e., prior to the
point at which the People could question each of them – that they
could not be impartial and had animosity toward the People.
Thus, it was unnecessary for the People to question these
prospective jurors after their responses to County Court's
questioning established their lack of impartiality.
Furthermore, prospective jurors who discussed relatives or
friends accused of crimes could be viewed as falling into a
different category than one who admitted to having been
personally accused, and we would expect the People's colloquies
with such jurors to reflect this subtle distinction.
                              -6-                106644

[when] it could have been addressed, defendant failed to
preserve" this contention for our review (People v James, 99 NY2d
at 272; see People v Smocum, 99 NY2d at 423-424; People v Thomas,
92 AD3d 1084, 1086 [2012]; People v Knowles, 79 AD3d at 21;
compare People v Grafton, 132 AD3d at 1067), and we decline to
exercise our interest of justice jurisdiction (see People v
Coleman, 5 AD3d 1074, 1075 [2004], lv denied 3 NY3d 638 [2004]).
In reaching this conclusion, we reaffirm the importance of both
the trial court's attention to each articulated, sequential step
of the Batson inquiry, and counsel's "attention to placing their
objections on the record so they may be addressed by the court"
(People v Smocum, 99 NY2d at 423-424). Indeed, "whatever
procedural problems may exist in a Batson inquiry, the overriding
concern is that a properly preserved question regarding the
ultimate issue of discrimination is meaningfully addressed"
(People v Grafton, 132 AD3d at 1067 [emphasis added]; see People
v Smocum, 99 NY2d at 423; People v James, 99 NY2d at 273).

      Defendant also contends that, because his intent to sell
was not an issue at the second trial, County Court erred in
partially denying his motion to preclude the People from
introducing evidence regarding the $5,000 in cash that was seized
from his pillowcase. "'Even where technically relevant evidence
is admissible, it may still be excluded by the trial court in the
exercise of its discretion if its probative value is
substantially outweighed by the danger that it will unfairly
prejudice the other side'" (People v Cassala, 130 AD3d 1252, 1256
[2015], lv denied 27 NY3d 994 [2016], quoting People v Scarola, 7
NY2d 769, 777 [1988] [citations omitted]; see People v Caban, 14
NY3d 369, 374-375 [2010]). Where the intent to sell is not an
element of the crime charged, proof that a defendant possessed a
large sum of cash at the time of arrest is generally inadmissible
because it typically has no relationship to the charge and, thus,
any probative value is outweighed by the potential for prejudice
(see People v Bailey, 159 AD2d 862, 863 n [1990]; People v
Whitfield, 144 AD2d 915, 915-916 [1988]; see also People v
Sumter, 68 AD3d 1701, 1702 [2009], lv denied 14 NY3d 893 [2010]).

      Here, it is undisputed that the intent to sell was not an
element of the crime at issue in the second trial. Nevertheless,
the People maintained that the $5,000 in cash was relevant to
                              -7-                106644

prove defendant's financial means to purchase the amount of crack
at issue and also to refute his position – which he maintained
during the first trial – that he could not be held accountable
for any admissions made at the time that the crack was
confiscated from his jacket pocket because he was in an allegedly
oblivious state of consciousness due to the pain medications that
had been administered to him. To counter this tactic, the People
sought to show that defendant had exhibited full awareness of his
circumstances when the cash was seized from his pillowcase very
shortly after the seizure of the crack. In our view, the
People's proffer established a sufficient relationship between
the $5,000 in cash and the crime charged, and County Court's
compromise – which allowed the People to elicit testimony
regarding the $5,000 in cash, but prohibited them from
introducing evidence that it was almost exclusively comprised of
$20 bills – ameliorated the potential for prejudice (compare
People v Whitfield, 144 AD2d at 916).

      In any event, even if we were to conclude that County Court
abused its discretion, we would find that there was overwhelming
evidence of defendant's guilt (see People v Sumter, 68 AD3d at
1702). In this regard, several witnesses testified that
defendant admitted ownership of the crack found in his jacket and
it was established that the crack weighed over one-half ounce.
This proof – even in the face of defendant's testimony denying
the foregoing events – overwhelmingly established defendant's
guilt and, thus, any error in admitting the testimony regarding
the $5,000 found in defendant's pillowcase was harmless (see
People v DeCarr, 130 AD3d 1365, 1367 [2015], lv denied 26 NY3d
1008 [2015]).

      We are also unpersuaded by defendant's contention that he
was deprived of a fair trial by the prosecutor's comments during
summation. Initially, defendant's challenge to the prosecutor's
remarks regarding the testimony of defendant's mother and whether
defendant disputed that crack was found in his jacket went
unobjected to at trial and, thus, are unpreserved for our review
(see People v Adams, 135 AD3d 1154, 1158 [2016], lv denied 27
NY3d 990 [2016]; People v Mitchell, 129 AD3d 1319, 1321 [2015],
lv denied 26 NY3d 1041 [2015]). As for the remaining comments
that defendant challenges, even if we were to conclude that they
                              -8-                106644

were improper, we would find that they did not constitute such "a
flagrant and pervasive pattern of prosecutorial misconduct so as
to deprive [him] of a fair trial" (People v Fiorino, 130 AD3d
1376, 1380 [2015] [internal quotation marks and citations
omitted], lv denied 26 NY3d 1087 [2015]; see People v Mitchell,
129 AD3d at 1321; People v Heiserman, 127 AD3d 1422, 1424 [2015];
compare People v Cassanova, 119 AD3d 976, 979 [2014]; People v
Forbes, 111 AD3d 1154, 1160 [2013]), especially in light of the
fact that County Court sustained a number of defendant's
objections and gave several prompt and adequate curative
instructions (see People v Chancey, 127 AD3d 1409, 1412 [2015],
lv denied 25 NY3d 1199 [2015]; People v Milford, 118 AD3d 1166,
1171 [2014], lv denied 23 NY3d 1065 [2014]).

      We have considered defendant's remaining contentions and
find them to be unavailing.

     Devine and Clark, JJ., concur.


McCarthy, J. (concurring in part and dissenting in part).

      "The Constitution forbids striking even a single
prospective juror for a discriminatory purpose" (Snyder v
Louisiana, 552 US 472, 478 [2008] [internal quotation marks,
brackets and citations omitted]; accord Foster v Chatman, ___ US
___, ___, 136 S Ct 1737, 1747 [2016]). Once a Batson challenge
is made, a trial court must engage in a three-step process, the
steps of which are well-established by clear case law stretching
back more than 30 years (see Foster v Chatman, 136 S Ct at 1747;
Batson v Kentucky 476 US 79, 97-98 [1986]). The third step of
this inquiry is the "key, final protocol," in which the trial
court both resolves factual disputes and makes findings of fact
and assessments of credibility (People v Payne, 88 NY2d 172, 186
[1996]). A trial court that resolves a Batson challenge without
proceeding to this third step "falls short of [providing] a
meaningful inquiry into the question of discrimination" (People v
Smocum, 99 NY2d 418, 423 [2003] [internal quotation marks and
citations omitted]). Further, "trial courts bear the judicial
responsibility of ensuring that an adequate record is made and of
reflecting the basis for their [Batson] rulings" (People v Payne,
                              -9-                106644

88 NY2d at 184). It is uncontested that, here, County Court
failed to proceed to the third step of defendant's Batson
challenge. In contrast to the majority, we find that, as in
People v Watson (___ AD3d ___, ___, 2016 NY Slip Op 03688, *5
[2016]), corrective action in the interest of justice is
warranted based on this failure. We would remit the matter for
further proceedings necessary to satisfy the Batson inquiry and,
therefore, we respectfully dissent in this regard.

      We agree with the majority's analysis as to the
application of the first two steps of the Batson inquiry. Our
focus is on the potential harm of County Court's failure to
proceed to the third step, in which defendant would be afforded
the opportunity to persuade the court that two nonwhite jurors,
juror No. 2 and juror No. 14, were struck based on purposeful
discrimination, prior to the court making a determination as to
whether the prosecutor's proffered reasons for striking those
jurors were pretextual (see Foster v Chatman, 136 S Ct at 1747;
People v Jones, 136 AD3d 1153, 1158 [2016], lv dismissed 27 NY3d
1000 [2016]). As to this third step, "[t]he trial court has a
pivotal role in Batson claims [including] an evaluation of the
prosecutor's credibility" (Snyder v Louisiana, 552 US at 477).
This is especially true when a prosecutor cites a juror's
demeanor as the reason for the use of the peremptory challenge
(see e.g. id. at 479).

      In assessing whether corrective action is warranted despite
defendant's failure to preserve the issue,1 we turn to the
questions raised by the record that cannot be resolved given the


    1
        In considering the importance of preservation, it is
notable that the interests that Batson was designed to protect
are not all represented by a defense attorney's zealous advocacy.
"Batson was designed to serve multiple ends, only one of which
was to protect individual defendants from discrimination in the
selection of jurors" (Powers v Ohio, 499 US 400, 406 [1991]
[internal quotation marks and citations omitted]). "Batson
recognized that a prosecutor's discriminatory use of peremptory
challenges harms the excluded jurors and the community at large"
(id. [citation omitted]).
                              -10-               106644

absence of the step-three inquiry. Notably, the prosecutor's
sole articulated reason for striking juror No. 2 was that he was
not paying attention. The two relevant comments that the
prosecutor had made during the previous questioning was that
juror No. 2 had looked "deep in thought" and that he looked like
he was "thinking really hard." In the absence of a step-three
inquiry, the record is bereft of any findings by County Court as
to whether or not juror No. 2 had been paying attention or
whether or not it credited the proffered explanation that he had
not been paying attention.

      Regarding juror No. 14, a black woman, the prosecutor
stated that he did not want her on the jury because she believed
that "she was a victim of racial profiling." County Court failed
to make the crucial finding resolving whether that reason was
pretextual.2 This more probing inquiry should have considered
the views expressed by juror No. 14, in response to a number of
questions by the prosecutor regarding a decade-old
"[s]hoplifting" charge against her that had been dismissed by a
court3: she believed she had been treated fairly by law
enforcement and the court system; she described the police
officer involved, the judge involved and her attorney as "very
nice"; and she did not have preconceived notions about law
enforcement or about the court system. After receiving these
responses – responses which one might expect from an exemplary
prospective juror – the prosecutor asked her whether she had felt
"targeted." In response, and for the first time, she mentioned
race, stating that she "believ[ed] it was a case of racial


    2
        As the majority notes, step two can be satisfied by
unpersuasive or implausible reasons, as long as they are facially
neutral. That step was satisfied here by the literal conclusion
that juror No. 14 mentioned racial profiling in response to a
question that did not mention race.
    3
        Before the prosecutor's inquiry had even begun, juror No.
14 had already assured County Court that she could be fair and
impartial, that she would not hold that prior "episode" against
the People and that she understood that the episode and the trial
at issue were "completely different situations."
                              -11-                106644

profiling . . . [b]ecause of how [she] looked and how [she] was
dressed."4 She further stated that this conclusion was "just
[her] opinion" and that it was "just how [she] processed it."
Although the aforementioned colloquy was unique from all others
based on the fact that juror No. 14 mentioned racial profiling,
it was also unique from all others based on the fact that she was
the only juror asked about "target[ing]." The prosecutor had
multiple colloquies with jurors regarding criminal accusations
and convictions and never asked another juror for an opinion
about whether the subject of those accusations or convictions had
been "targeted."5 County Court was uniquely situated to make
factual findings regarding the foregoing before making a
credibility determination as to whether or not the prosecutor's
stated reason for using a peremptory strike against this juror
was pretextual.

      On this record, "[t]he prosecutor's putatively neutral
explanations cannot be assessed and resolved as a matter of law,
given the ambiguities and lack of clarity" (People v Watson, 2016
NY Slip Op 03688 at *4). In light of this conclusion, and upon
consideration of the critical role that Batson plays in the
provision of justice, we would hold defendant's appeal in
abeyance and remit the matter for further proceedings necessary
to satisfy the requirements of Batson v Kentucky (476 US 79
[1986], supra) and its progeny (see Foster v Chatman, 136 S Ct


     4
        Notably, juror No. 14 never stated who she felt had
racially profiled her.
     5
        The majority concludes that it would have been
"unnecessary" to ask other jurors about targeting, because those
who admitted to having been accused of a crime had already
expressed ill will toward the People prior to any colloquy with
the prosecutor. That analysis, however, overlooks the fact that
a number of jurors discussed criminal accusations against
"relative[s] or close friend[s]." Multiple jurors assured the
prosecutor that they could be fair despite criminal accusations
against relatives or friends, and the prosecutor did not ask any
of those jurors whether the relevant relative or friend had been
"targeted."
                              -12-                 106644

1737; Snyder v Louisiana, 552 US 472 [2008], supra; Powers v
Ohio, 499 US 400 [1991]; People v Watson, 2016 NY Slip Op 03688
at *5).

     Aarons, J., concurs.



      ORDERED that the judgment is modified, on the law, by
reversing defendant's conviction of criminal possession of
marihuana in the fourth degree under count three of the
indictment and vacating the sentence imposed thereon; matter
remitted to the County Court of Albany County for further
proceedings pursuant to CPL 460.50 (5) and for a new trial on
count three; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
