People v Cannon
2023 NY Slip Op 03134 [217 AD3d 1417]
June 9, 2023
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 9, 2023


[*1]
 The People of the State of New York, Respondent,
v
Latifah Cannon, Appellant.

Julie Cianca, Public Defender, Rochester, Easton Thompson Kasperek Shiffrin LLP (Brian Shiffrin 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 (Judith A. Sinclair, J.), rendered June 13, 2019. The judgment convicted defendant upon a jury verdict of robbery in the first degree and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and endangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light of the elements of the crime of robbery in the first degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to that count is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" (id.; see People v Kalinowski, 118 AD3d 1434, 1436 [4th Dept 2014], lv denied 23 NY3d 1064 [2014]). We reject defendant's further contention that Supreme Court erred in denying her Batson challenge with respect to two prospective jurors. The People gave race-neutral reasons for the peremptory challenges, and defendant did not meet her ultimate burden of establishing that those reasons were pretextual (see People v Switts, 148 AD3d 1610, 1611 [4th Dept 2017], lv denied 29 NY3d 1087 [2017]; People v Johnson, 38 AD3d 1327, 1328 [4th Dept 2007], lv denied 9 NY3d 866 [2007]). "[T]he court was in the best position to observe the demeanor of the prospective juror[s] and the prosecutor, and its . . . determination that the prosecutor's explanation[s were] race-neutral and not pretextual is entitled to great deference" (People v Dandridge, 26 AD3d 779, 780 [4th Dept 2006] [internal quotation marks omitted]). We see no reason to disturb that determination. Finally, we reject defendant's contention that she was denied a fair trial because of improper statements made by the prosecutor during summation. "To the extent that a portion of the prosecutor's summation could be viewed as containing a misstatement of law, . . . any prejudice was avoided by the court's instructions, which the jury is presumed to have followed" (People v Harper, 132 AD3d 1230, 1234 [4th Dept 2015] [internal quotation marks omitted], lv denied 27 NY3d 998 [2016]; see People v Padin, 121 AD3d 628, 629 [1st Dept 2014], lv denied 25 NY3d 1169 [2015]). Present—Whalen, P.J., Lindley, Curran, Bannister and Greenwood, JJ.