Opinion
2012-02-7
The PEOPLE of the State of New York, Respondent, v. Melody RIVERA, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Adrienne Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Adrienne Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
SAXE, J.P., FRIEDMAN, CATTERSON, FREEDMAN, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered July 10, 2009, as amended September 1, 2009 and September 22, 2009, convicting defendant, after a jury trial, of grand larceny in the fourth degree (two counts) and jostling, and sentencing her, as a second felony offender, to an aggregate term of 1 1/2 to 3 years, unanimously affirmed.
The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]. Defendant failed to meet her burden of establishing that the prosecutor's facially nondiscriminatory reasons for peremptorily challenging two prospective jurors were pretextual ( see People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ). The record supports the court's rejection of defendant's claims of pretext, and these findings, based primarily on the court's assessment of the prosecutor's credibility, are entitled to great deference ( see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 [2008]; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ).
The prosecutor's overall impression of one of the panelists at issue was that she lacked the intellectual capacity to understand the case. The prosecutor explained that the other panelist at issue reacted angrily when the prosecutor mispronounced her name. There is no basis for disturbing the court's acceptance of these explanations as genuine. We do not find any disparate treatment by the prosecutor of similarly situated panelists.
Defendant did not preserve her challenge to a detective's testimony as to defendant's presence in a surveillance videotape, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.