| People v Shaheed |
| 2010 NY Slip Op 01522 [70 AD3d 980] |
| February 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TariqShaheed, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Rebecca Kramer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered December 5, 2007, convicting him of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, reckless endangerment in the firstdegree (two counts), resisting arrest, and criminal possession of a controlled substance in theseventh degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that, based upon the prosecutor's challenge under Batson(see Batson v Kentucky, 476 US 79 [1986]) and Kern (see People vKern, 75 NY2d 638, 657-658 [1990], cert denied 498 US 824), the trial courtimproperly sat two jurors of Asian ancestry against whom he attempted to exercise peremptorychallenges. This Court accords great weight to the trial court's ability to assess whether or not aproffered explanation is pretextual (see People v Jupiter, 210 AD2d 431, 434 [1994];People v Dixon, 202 AD2d 12, 17 [1994]) and, where a trial court's conclusion issupported by the record, its conclusion will not be disturbed (see People v Miller, 266AD2d 478, 479 [1999]). Here, the trial court properly rejected the defendant's explanation for hisuse of a peremptory strike against prospective juror No. 9 based upon his inconsistent use of thearticulated criterion with respect to jurors of other races (see People v Fergas, 272 AD2d340 [2000]; People v Waldo, 221 AD2d 390 [1995]; People v Watson, 216AD2d 596 [1995]).
The court also properly exercised its discretion as to prospective juror No. 14. Defensecounsel's proffered explanation—that use of the strike was based upon "gamesmanship"and a "strategic" decision to try to seat prospective jurors 15 and 16 whom she and the defendantbelieved would be more favorable to the defense, was legally insufficient. To accept a party's"bare assertion, unsupported by any factual basis, that the prospective juror was 'neutral' andwould not be a 'strong' . . . juror [for that party] would be, in effect, to accept noreason at all" (People v Peart, 197 AD2d 599, 600 [1993]). Accordingly, the courtproperly seated prospective juror No. 14 over the defendant's objection.
The defendant's remaining contentions do not require reversal. Fisher, J.P., Angiolillo, Belenand Lott, JJ., concur.