People v Carter
2007 NY Slip Op 02238 [38 AD3d 1256]
March 16, 2007
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent, v Darrick T. Carter, Appellant.

[*1] Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered July 8, 2003. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby 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]). We reject the contention of defendant that Supreme Court erred in denying his request for a missing witness charge. Defendant failed to establish that the individuals who were the subject of the requested charge would be expected to provide noncumulative testimony favorable to the prosecution (see People v Hilts, 191 AD2d 779, 780-781 [1993], lv denied 81 NY2d 1074 [1993]; People v Williams, 186 AD2d 469, 469-470 [1992], lv denied 81 NY2d 849 [1993]). Indeed, the two eyewitnesses testified that those individuals were accomplices, and "the People should not be required to call a witness whose testimony would be 'presumptively suspect' " (People v Arnold, 298 AD2d 895, 895 [2002], lv denied 99 NY2d 580 [2003]; see also People v Karas, 21 AD3d 1360 [2005], lv denied 5 NY3d 883, 6 NY3d 814 [2005]).

Also contrary to the contention of defendant, the court properly denied his Batson challenge. "The court was in the best position to observe the demeanor of the prospective juror[ ] and the prosecutor," and its determination that the prosecutor's explanation for exercising a peremptory challenge with respect to that prospective juror was not a pretext for discrimination is entitled to great deference (People v Williams, 13 AD3d 1214, 1215 [2004], lv denied 4 NY3d 857 [2005]; see People v Lawrence, 23 AD3d 1039 [2005], lv denied 6 NY3d 835 [2006]). We reject the further contention of defendant that the court's Sandoval ruling, pursuant to which the People were allowed to cross-examine defendant with respect to a prior attempted robbery conviction, constitutes an abuse of discretion (see People v Gilliam, 36 AD3d 1151 [2007]; People v Parris, 30 AD3d 1108 [2006], lv denied 7 NY3d 816 [2006]; People v Jamison, 278 AD2d 100 [2000], lv denied 96 NY2d 784 [2001]). Contrary to defendant's contention, "an exercise of a trial court's Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning . . . , particularly where, as here, the basis of the court's decision may be inferred from [*2]the parties' arguments" (People v Walker, 83 NY2d 455, 459 [1994]). The sentence is not unduly harsh or severe, and there is no indication in the record that the sentence imposed was the product of vindictiveness (see People v White, 12 AD3d 1200 [2004], lv denied 4 NY3d 768 [2005]). "The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial" (People v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]; see People v Pena, 50 NY2d 400, 411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]).

We have considered defendant's remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.