| People v Hardy |
| 2009 NY Slip Op 03452 [61 AD3d 616] |
| April 30, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Levorn Hardy, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 8, 2006,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the seventh degree, and sentencinghim, as a second felony drug offender, to an aggregate term of six years, unanimously affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The prosecutor explained that she had challenged the panelist at issuebecause she believed the panelist, as an aspiring social worker, might be sympathetic to thedefense. This was a nonpretextual reason (see People v Wint, 237 AD2d 195, 197-198[1997], lv denied 89 NY2d 1103 [1997]). Defense counsel then argued that this reasonwas pretextual and the court, by permitting the peremptory challenge to stand, implicitly rejectedthe pretext argument and found the proffered reason nonpretextual (see People v Pena,251 AD2d 26, 34 [1998], lv denied 92 NY2d 929 [1998]; compare Dolphy vMantello, 552 F3d 236, 239 [2d Cir 2009]). This finding is entitled to great deference and issupported by the record (see People v Hernandez, 75 NY2d 350 [1990], affd 500US 352 [1991]). Defendant argues that the prosecutor's failure to challenge panelists who weresimilarly situated, except as to national origin, later in jury selection demonstrated that thechallenge was pretextual. However, defendant did not ask the court to revisit its completedBatson determination on the basis of these new developments. We find this argumentunpreserved, and we decline to review it in the interest of justice. In this case, "an exploration ofthe alleged similarities at the time of trial might have shown that the jurors in question were notreally comparable" (Snyder v Louisiana, 552 US —, —, 128 S Ct 1203,1211 [2008]). As an alternative holding, we also reject it on the merits. Although a subsequentpanelist also had a background in social work, the prosecutor actually exercised a peremptorychallenge against her, and only after no other questioned panelist remained did the prosecutorpermit her to serve as the second alternate juror, a position likely to prove superfluous in a shorttrial. Accordingly, there was no disparate treatment of comparable panelists. We have consideredand rejected defendant's remaining arguments on the Batson issue.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline to[*2]review them in the interest of justice. As an alternativeholding, we also reject them on the merits. The comments that defendant characterizes asvouching were permissible record-based credibility arguments (see People v Overlee,236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Concur—Gonzalez, P.J.,Tom, Sweeny, Buckley and Acosta, JJ.