| People v Johnson |
| 2010 NY Slip Op 04256 [73 AD3d 578] |
| May 20, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Johnson, Appellant. The People of the State of New York,Respondent, v David Natt, Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Ellen Dille of counsel), for David Natt,appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lindsey M. Kneipper of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered February27, 2008, convicting defendant Johnson, after a jury trial, of criminal sale of a controlledsubstance in the third degree, and sentencing him to a term of three years, unanimously affirmed.Judgment, same date, court and Justice, convicting defendant Natt, after a jury trial, of criminalpossession of a controlled substance in third degree, and sentencing him, as a second felony drugoffender, to a term of 10 years, unanimously modified, as a matter of discretion in the interest ofjustice, to the extent of reducing the sentence to eight years, and otherwise affirmed.
The court properly denied defendants' applications pursuant to Batson v Kentucky(476 US 79 [1986]). The record supports the court's finding that the nondiscriminatory reasonsprovided by the prosecutor for the peremptory challenges in question were not pretextual, acredibility determination that is entitled to great deference (see People v Hernandez, 75NY2d 350, 356 [1990], affd 500 US 352 [1991]). "[W]here the explanation for aperemptory challenge is based on a prospective juror's demeanor, the judge should take intoaccount, among other things, any observations of the juror that the judge was able to makeduring the voir dire" (Thaler v Haynes, 559 US —, —, 130 S Ct 1171, 1174[2010]). We conclude that the prosecutor's explanations were demeanor-based, and were notmischaracterizations of the panelists' responses. Tone or inflection of voice, hesitation, facialexpressions, shrugs, gestures and the like can render [*2]equivocal what appears, in print, to be an unequivocal statement.The prosecutor's use of the term "interaction," although late in the Batson colloquy,clarified that the explanations for the challenges were based on demeanor, and the court's explicitreliance on its "observations" demonstrated that it understood the explanations to bedemeanor-based, and credited them.
The court properly rejected defendants' challenges for cause to two prospective jurors. As toeach panelist, the colloquy, read as a whole, establishes that the panelist gave a sufficientassurance of his or her ability to set aside any predispositions and render an impartial verdict(see People v Chambers, 97 NY2d 417 [2002]). Accordingly, the seating of one of thesepanelists as a juror did not deprive defendants of their right to an impartial jury.
As to each defendant, the verdict was based on legally sufficient evidence and was notagainst the weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's determinations concerning credibility. Although we may consider defendants' acquittals onother counts, and the acquittals of the other jointly tried codefendants, we do not find that any ofthese acquittals warrants a contrary conclusion (see People v Rayam, 94 NY2d 557, 563n [2000]). In particular, the evidence of Natt's possession of drugs with intent to sell includedtestimony from the arresting officer that he saw Natt accept money from a purchaser whoimmediately obtained drugs from Johnson. In addition, Natt possessed drugs packagedidentically to those recovered from the buyer, as well as a large amount of cash. Natt's acquittalof the sale charge is a relevant factor but, under the principles articulated in Rayam andPeople v Tucker (55 NY2d 1, 7 [1981]), it does not make the evidence of the saledisappear (see People v Freeman, 298 AD2d 311 [2002], lv denied 99 NY2d 582[2003]).
We find Natt's sentence excessive to the extent indicated. Concur—Gonzalez, P.J.,Friedman, DeGrasse, Manzanet-Daniels and RomÁn, JJ.