Opinion
No. 1724.
October 16, 2007.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered September 28, 2005, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, and sentencing him to an aggregate term of 3½ years, unanimously affirmed.
Steven Banks, The Legal Aid Society, New York (John Schoeffel of counsel), and Dewey Ballantine, LLP, New York (Jeffrey J. Amato of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Lucy Jane Lang of counsel), for respondent.
Before: Lippman, P.J., Andrias, Marlow, Buckley and Catterson, JJ.
The court properly denied defendant's application made pursuant to Batson v Kentucky ( 476 US 79). The record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual. These credibility-based findings are entitled to great deference ( see People v Hernandez, 75 NY2d 350, affd 500 US 352). With respect to one of the panelists at issue, the prosecutor was, at worst, honestly mistaken about the facts that led her to believe that the panelist had answered a question untruthfully. The other challenge at issue based on demeanor was specifically articulated and legitimate. Defendant's argument concerning the procedure employed by the court in resolving the Batson application is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it without merit.