| People v Otero |
| 2008 NY Slip Op 09175 [56 AD3d 350] |
| November 20, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Maribel Otero, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November 18,2002, convicting defendant, after a jury trial, of attempted assault in the first degree and assaultin the second degree, and sentencing her to concurrent terms of five years, unanimously affirmed.
The court properly exercised its discretion (see People v Williams, 63 NY2d 882,885 [1984]) when it granted the prosecutor's challenge for cause to a prospective juror. Althoughthe panelist gave a general assurance of impartiality, she expressly stated her agreement withanother panelist who had been unable to give an assurance of his ability to follow the court'sinstruction that the People were not required to prove defendant's motive (see People v Santana, 27 AD3d308, 309 [2006], lv denied 7 NY3d 794 [2006]). The court properly determined thatthe panelist at issue was just as unqualified as the other panelist, whom the prosecutor alsochallenged for cause, and whom defendant agreed to excuse.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The record supports the court's finding that the nondiscriminatoryemployment-based reason provided by the prosecutor for the challenge in question was notpretextual. This finding is entitled to great deference (see People v Hernandez, 75 NY2d350 [1990], affd 500 US 352 [1991]). Defendant did not establish disparate treatment bythe prosecutor of similarly situated panelists.
Defendant is not entitled to reversal, or any other corrective action, as the result of thePeople's loss of a 911 tape that was admitted at trial as an excited utterance (see People vYavru-Sakuk, 98 NY2d 56 [2002]). The content of the call is undisputed, and the speaker'sexcited tone of voice is sufficiently described on the present record. Accordingly, defendant hasnot identified any issue that this Court could not decide without listening to the tape. In anyevent, even if we found the tape inadmissible, we would find the error to be harmless.
The court properly exercised its discretion in denying defendant's mistrial motion made whenthe prosecutor, while cross-examining defendant, asked an inappropriate question aboutdefendant's husband's conviction of a crime. The question, which was not inflammatory, wentunanswered, and the court prevented any prejudice by way of a strong curative instruction(see [*2]People v Santiago, 52 NY2d 865 [1981]) that thejury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).
Defendant's remaining contentions are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we find no basis for reversal. Concur—Tom,J.P., Saxe, Sweeny, Catterson and DeGrasse, JJ.