| People v Samms |
| 2011 NY Slip Op 03636 [83 AD3d 1099] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Samms, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman,J.), rendered July 23, 2007, convicting him of assault in the first degree, robbery in the firstdegree (two counts), and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The determination at stage three of the Batson inquiry (see Batson vKentucky, 476 US 79 [1986]; People v Wells, 7 NY3d 51, 58 [2006]), whether afacially valid reason for challenging a prospective juror is genuine or pretextual, is purely anissue of fact (see Miller-El v Cockrell, 537 US 322, 339 [2003]; People v Hecker,15 NY3d 625, 656 [2010], cert denied sub nom. Black v New York, 563 US —,131 S Ct 2117 [2011]), and turns largely onthe court's credibility determination, which is entitled to great deference on appeal (seePeople v Hernandez, 75 NY2d 350, 356 [1990]; People v Scott, 70 AD3d 978, 980[2010]; People v Parnell, 60 AD3d 1087 [2009]; People v McLaurin, 47 AD3d843 [2008]). Here, we decline to disturb the trial court's finding on the People's"reverse-Batson" challenge that the facially race-neutral reason proffered by defensecounsel to explain his peremptory challenge of a particular white juror was pretextual. Althoughthe record is equivocal as to whether that juror's response to questioning about the presumptionof innocence was meaningfully different from a particular black juror's response to a similarquestion (cf. People v Russo, 243 AD2d 658, 659-660 [1997]), we cannot say that thetrial court, which observed the jurors when they answered those questions and was in the bestposition to assess whether defense counsel's reason was genuine or pretextual, erred in finding itpretextual (see People v Scott, 70 AD3d at 980). We likewise decline to disturb the trialcourt's stage three determination that the prosecutor's stated reasons for his peremptorychallenges of three black prospective jurors were not pretextual (see People v Hecker, 15NY3d at 663-664; People v Wells, 7 NY3d at 58; People v Thompson, 45 AD3d876, 877 [2007]).
While defense counsel's representation of the defendant was not flawless, we find that thedefendant was not deprived of his right to the effective assistance of counsel (see People vBenevento, 91 NY2d 708, 711 [1998]; see also Strickland v Washington, 466 US668 [1984]). Viewed in its totality, defense counsel's vigorous and dedicated performancesatisfied constitutional standards (see People v Henry, 95 [*2]NY2d 563, 565 [2000]; Strickland v Washington, 466 US at687, 694).
We reject the defendant's contention that the sentencing court violated Penal Law §70.25 (2) by imposing consecutive sentences on his conviction of robbery in the first degreeunder the fourth count submitted (Penal Law § 160.15 [2]), and his conviction of assault inthe first degree (Penal Law § 120.10 [1]). Although those two convictions arose out of asingle transaction, the acts constituting the assault and that count of robbery in the first degreewere separate and distinct (see People v McKnight, 16 NY3d 43, 48 [2010]; People vBattles, 16 NY3d 54 [2010]; cf. People v Marte, 52 AD3d 737, 737-738 [2008],affd 12 NY3d 583 [2009], cert denied 559 US —, 130 S Ct 1501 [2010];People v Bryant, 39 AD3d 768, 769 [2007]). Angiolillo, J.P., Balkin, Leventhal andSgroi, JJ., concur.