Opinion
Argued October 15, 1999
November 30, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin, J.), rendered January 5, 1998, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
During voir dire, the defense counsel exercised a peremptory challenge to four white prospective jurors, and the prosecutor raised a reverse- Batson objection ( see, Batson v. Kentucky, 476 U.S. 79; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824). The defense counsel offered facially race-neutral explanations, including his assessment that one of the challenged prospective jurors was "a little overweight", and "seemed a little unhealthy", and she might be unable to sit through a week or more of testimony. Thereafter, the court denied the defendant's peremptory challenge to that prospective juror, finding that the explanation was pretextual. We agree.
The racially-motivated use of peremptory challenges by either the defense or the prosecution violates the Equal Protection Clause of both the State and Federal Constitutions ( see, Hernandez v. New York, 500 U.S. 352; Batson v. Kentucky, 476 U.S. 79; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824; People v. Thomas, 210 A.D.2d 515).
The Supreme Court properly determined that the explanation proffered by the defense counsel was a mere pretext offered in an attempt to conceal a racially-discriminatory intent ( see, People v. Hawthorne, 80 N.Y.2d 873; People v. Jupiter, 210 A.D.2d 431; People v. McCoy, 210 A.D.2d 508; People v. Dixon, 202 A.D.2d 12). The determination of the Supreme Court is entitled to great deference on appeal and will not be disturbed where, as here, it is supported by the record ( see, Hernandez v. New York, supra; People v. Garcia, 239 A.D.2d 599; People v. Guess, 208 A.D.2d 559; People v. Jones, 204 A.D.2d 485; People v. Bailey, 200 A.D.2d 677; People v. Mondello, 191 A.D.2d 462).
O'BRIEN, J.P., KRAUSMAN, FLORIO, and FEUERSTEIN, JJ., concur.