Opinion
December 3, 1998
Appeal from the Supreme Court, New York County (John Bradley, J.).
According due deference to the court's assessment of defendant's proffered explanation for the peremptory challenge that was disallowed, we find that, in view of the record of the entire voir dire, the court properly concluded that the explanation was pretextual (People v. Hernandez, 75 N.Y.2d 350, 356-358, affd 500 U.S. 352).
Defendant was properly convicted of criminal use of a firearm in the first degree based upon the underlying crime of murder in the second degree, even though that crime is a class A-I felony, since, by committing murder in the second degree, defendant necessarily also committed attempted murder in the second degree and manslaughter in the first degree, which are lesser included offenses of second-degree murder and class B violent felony offenses enumerated in Penal Law § 70.02 (1). Contrary to defendant's argument, it is immaterial, for these purposes, that the evidence clearly established defendant's guilt of murder (see, People v. Tavormina, 257 N.Y. 84).
Concur — Sullivan, J. P., Milonas, Tom and Mazzarelli, JJ.