| People v Miles |
| 2008 NY Slip Op 07184 [55 AD3d 307] |
| October 2, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Randy Miles, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nikki D. Faldman of counsel), forrespondent.
Judgments, Supreme Court, Bronx County (Martin Marcus, J., at hearing; Thomas Farber, J.,at plea, trial and sentence), rendered October 6, 2005, convicting defendant, after a jury trial, ofcriminal possession of a controlled substance in the third degree, and convicting him, upon hisplea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, toan aggregate term of 5 to 10 years, unanimously affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). Defendant failed to meet his step-three burden of demonstrating that thefacially race-neutral explanations given by the prosecutor were a pretext for racial discrimination(see People v Payne, 88 NY2d 172, 183 [1996]). After the prosecutor explained that shechallenged the panelists at issue because of their inattentive demeanor during her voir direexamination, defense counsel merely made the observation that he did not personally notice anyinattentiveness. Although the court admitted that it was unable to either confirm or contradict theprosecutor's observation of inattentive demeanor because it had not been watching the panelistsduring the prosecutor's questioning, it expressly credited the prosecutor and found that thedemeanor-based reasons she provided for the challenges in question were not pretextual. Thisfactual determination is entitled to great deference (see People v Hernandez, 75 NY2d350 [1990], affd 500 US 352 [1991]). We do not read Snyder v Louisiana (552US —, 128 S Ct 1203 [2008]) as absolutely prohibiting a trial court from accepting ademeanor-based reason as nonpretextual unless the court personally observes the demeanor traitcited by the challenging party (but see Haynes v Quarterman, 526 F3d 189, 198-200 [5thCir 2008]). Here, we conclude that the court satisfied Snyder's concerns when it made anexpress factual finding that the prosecutor "credibly relied on demeanor in exercising a strike"(552 US at —, 128 S Ct at 1209).
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations (see People v Prochilo, 41 NY2d 759, 761 [1977]),including its resolution of any discrepancies between a police witness's testimony and hispaperwork. Probable cause for defendant's arrest was established by testimony that he met adetailed description of a person who had just made an apparent drug sale.[*2]
The verdict was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerningcredibility and identification. There was ample evidence of defendant's intent to sell, includingevidence warranting the conclusion that he made several contemporaneous drug sales.Concur—Lippman, P.J., Gonzalez, Nardelli, Acosta and DeGrasse, JJ.