| People v Thatcher |
| 2011 NY Slip Op 05534 [85 AD3d 1065] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DanteThatcher, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Lois Cullen Valerio,and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J.), rendered April 16, 2010, convicting him of criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon;as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court,Westchester County, for resentencing in accordance herewith.
Although the defendant contends that the Supreme Court erred in denying his Batsonchallenge (see Batson v Kentucky, 476 US 79 [1986]) because the prosecutor'sexplanation for peremptorily challenging two black potential jurors was allegedly pretextual, theSupreme Court properly determined that the Batson challenge was without merit (see People v Dehaarte, 65 AD3d593 [2009]). The defendant failed to satisfy his burden of demonstrating that the faciallyrace-neutral explanation given by the prosecutor was a pretext for racial discrimination (seePeople v Payne, 88 NY2d 172 [1996]).
Moreover, the Supreme Court did not err in denying the defendant's request that, in responseto the jury's request during deliberations for a police report which was not in evidence, the courtinform the jury that there was testimony available addressing the report (see People vSalaman, 231 AD2d 464 [1996]; People v Roman, 182 AD2d 519, 519 [1992]).
The defendant's contention with respect to the People's summation is unpreserved forappellate review and, in any event, without merit.
The defendant correctly argues, however, that, under the circumstances presented here, theSupreme Court improperly considered the defendant's trial strategy to be an "aggravating factor"during sentencing (see People v Patterson, 106 AD2d 520 [1984]; People vSuitte, 90 AD2d 80, 84 [1982]; cf. People v Tripp, 283 AD2d 447 [2001]).Accordingly, we vacate the sentence and remit the matter to the Supreme Court, WestchesterCounty, for resentencing.[*2]
In light of our determination, we need not reach thedefendant's contention that the sentence imposed was excessive. Mastro, J.P., Angiolillo,Chambers and Cohen, JJ., concur.