| People v Orr |
| 2010 NY Slip Op 04269 [73 AD3d 596] |
| May 20, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Donald Orr, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Philip J. Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene Goldberg, J.), rendered December 22,2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thefifth degree, and sentencing him, as a second felony drug offender whose prior felony convictionwas a violent felony, to a term of three years, unanimously affirmed.
Defendant argues that although his application under Batson v Kentucky (476 US 79[1986]) applied to four panelists from the first round of jury selection as well as two panelistsfrom the second, the prosecutor only gave reasons for peremptorily challenging the latter two.Defendant failed to preserve this claim (see People v James, 99 NY2d 264, 271 [2002];People v Dancy, 44 AD3d 331,331 [2007], lv denied 9 NY3d 1005 [2007]), and we decline to review it in the interest ofjustice. Regardless of whether defendant had included all six panelists in his Batsonapplication, when the prosecutor only addressed two of them, it was incumbent on defendant tocall this to the court's attention "at a time when the error complained of could readily have beencorrected" (People v Robinson, 36 NY2d 224, 228 [1975]).
Defendant also failed to preserve his claim that the court, in ruling on the prosecutor'sexplanations for challenging the second-round panelists at issue, did not make a sufficientfinding that it credited these explanations as nonpretextual, and we likewise decline to review itin the interest of justice. As an alternative holding, we also reject it on the merits, because thecourt expressly stated that the reasons were nonpretextual.
We reject defendant's claim that the prosecutor's stated reason for challenging one of thesepanelists was pretextual. The record supports the court's finding to the contrary, a credibilitydetermination that is entitled to great deference (see People v Hernandez, 75 NY2d 350,356 [1990], affd 500 US 352 [1991]).
The court properly denied defendant's subsequent Batson application relating to anadditional peremptory challenge by the prosecutor. The court had already found the absence ofdiscrimination, and defendant did not produce "evidence sufficient to permit the trial judge to[*2]draw an inference that discrimination ha[d] occurred"(Johnson v California, 545 US 162, 170 [2005]).
We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Catterson,Renwick, Richter and Abdus-Salaam, JJ.