Opinion
Submitted March 21, 2000.
May 3, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Perone, J.), rendered May 1, 1998, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the fifth degree, criminal use of drug paraphernalia in the second degree, endangering the welfare of a child, aggravated unlicensed operation of a motor vehicle, speeding in violation of Vehicle and Traffic Law § 1180 Veh. Traf., and failure to use a child safety seat in violation of Vehicle and Traffic Law § 1229 Veh. Traf., upon a jury verdict, and imposing sentence. On the appeal, the defendant seeks to review the denial, after a hearing, of that branch of his omnibus motion which was to suppress statements he made to law enforcement officials.
Stephen J. Pittari, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
DAVID S. RITTER, J.P., DANIEL W. JOY, SONDRA MILLER, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that the trial court erred in accepting the prosecutor's explanations for challenges to two black prospective jurors and one Hispanic prospective juror. While a trial court is generally in the best position to evaluate whether a racially-neutral explanation for the exercise of a peremptory challenge is pretextual (see, Hernandez v. New York, 500 U.S. 352; People v. Dixon, 202 A.D.2d 12), we find that the prosecutor's explanation for striking one of these jurors, i.e., that she had only a high school education, was pretextual under the circumstances of this case. Accordingly, the defendant is entitled to a new trial. The defendant's argument with respect to the suppression determination is not preserved for appellate review (see, People v. Turriago, 90 N.Y.2d 77; People v. Fung, 227 A.D.2d 173; People v. Lopez, 212 A.D.2d 549).
RITTER, J.P., JOY, S. MILLER and H. MILLER, JJ., concur.