| People v Frederick |
| 2008 NY Slip Op 01824 [48 AD3d 382] |
| February 28, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Trevor Frederick, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (James A. Yates, J.), rendered April 11, 2005,convicting defendant, after a jury trial, of attempted murder in the second degree, assault in thefirst degree, burglary in the first degree (three counts) and aggravated harassment in the seconddegree, and sentencing him to an aggregate term of 30 years, unanimously modified, on the law,to the extent of reducing the mandatory surcharge and crime victim assistance fee from $250 to$200 and $20 to $10, respectively, and otherwise affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The prosecutor explained that he challenged one panelist for anemployment-related reason, and challenged three others for demeanor-related reasons, coupled,in each instance, with a concern about the panelist's employment or educational level. The recordsupports the court's finding that these nondiscriminatory reasons were not pretextual. Thisfinding, which essentially involved an assessment of the prosecutor's credibility, is entitled togreat deference (see People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US352 [1991]), and we do not find any disparate treatment by the prosecutor of similarly situatedpanelists. Defendant did not preserve his present claims regarding a fifth panelist stricken duringthe first round of voir dire, or his claim that, in making its rulings, the court failed to follow theproper Batson procedure, and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits. Viewed in context, the court's statementthat the nondiscriminatory reasons were "not incredible" was a proper ruling, under step three ofBatson, that these reasons were nonpretextual, and the court implicitly made theappropriate factual findings.
The court properly instructed the jury that the intent element of burglary could be satisfied inthis case by, among other things, an intent to commit the crime of harassment in the first degree(Penal Law § 240.25). On the evidence presented, the jury could have found that at thetime of his entry into the premises, defendant intended to continue a course of conduct or seriesof repeated acts that placed the victim in reasonable fear of physical injury (cf. Peoplev India, 67 AD2d 488, 493 [1979] [dictum that entry with intent to continue an ongoingkidnapping would constitute burglary]).[*2]
As the People concede, since the crime was committedfour days prior to the effective date of the legislation providing for an increase in the mandatorysurcharge and crime victim assistance fee, they should be reduced as indicated.Concur—Mazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny, JJ.