Opinion
2011-11-29
The PEOPLE of the State of New York, Respondent, v. Jovannie FLORESTAL, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.
SAXE, J.P., FRIEDMAN, RENWICK, DeGRASSE, FREEDMAN, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 16, 2010, convicting defendant, after a jury trial, of murder in the second degree, and sentencing her to a term of 25 years to life, unanimously affirmed.
The court properly granted the People's reverse- Batson application ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [1990], cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 [1990] ). The record supports the court's finding, which is entitled to great deference, that since counsel failed to challenge non-Asian panelists possessing the same views as those cited as race-neutral reasons for challenging the panelist at issue, those reasons were pretextual ( see e.g. People v. Lozado, 303 A.D.2d 270, 755 N.Y.S.2d 611 [2003], lv. denied 100 N.Y.2d 563, 763 N.Y.S.2d 821, 795 N.E.2d 47 [2003] ).
Defendant's argument that the trial court failed to follow the Batson protocol is unpreserved ( see People v. Richardson, 100 N.Y.2d 847, 853, 767 N.Y.S.2d 384, 799 N.E.2d 607 [2003] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court correctly followed the three-step Batson procedure, and properly found pretext based on its own “founded and articulated rejection of the race-neutral reason” offered by defense counsel ( People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ). Even if “the court may have used the wrong nomenclature in describing its step-three ruling” ( People v. Washington, 56 A.D.3d 258, 259, 867 N.Y.S.2d 63 [2008], lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009] ), a defect that could have been cured immediately had defendant made a contemporaneous objection, it is clear from the surrounding context that the court's ultimate ruling was a finding of pretext.