| People v Toliver |
| 2013 NY Slip Op 00018 [102 AD3d 411] |
| January 3, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Toliver, Appellant. |
—[*1] Michael Toliver, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), renderedSeptember 13, 2010, convicting defendant, after a jury trial, of failure to verifyregistration information under the Sex Offender Registration Act (Correction Law art6-C) (three counts) and failure to verify annual registration information under that act,and sentencing him to an aggregate term of 2
The court properly denied defendant's application pursuant to Batson vKentucky (476 US 79 [1986]). The record supports the court's finding that thenondiscriminatory reasons provided by the prosecutor for the challenges at issue were notpretextual. This determination, based primarily on the court's assessment of thechallenging attorney's credibility, is entitled to great deference (see Snyder vLouisiana, 552 US 472, 477 [2008]; People v Hernandez, 75 NY2d 350[1990], affd 500 US 352 [1991]). The prosecutor explained that she hadchallenged the three panelists at issue based, respectively, on their unusual clothing,educational background, and employment. The prosecutor was not required to show thatthese rationales were related to the facts of the case, and we find no basis to disturb thecourt's findings (see People vHecker, 15 NY3d 625, 656, 663-665 [2010]).
Defendant claims that the education-related explanation for one of the challengeswas pretextual because, in a later round of jury selection after the Batsonapplication had been denied, the prosecutor did not challenge another prospectivejuror with the same educational level. However, defendant did not make that claim attrial, and the prosecutor had no opportunity to explain the alleged disparity. We declineto review this unpreserved argument in the interest of justice. As an alternative holding,we find that the record does not support a claim of disparate treatment by the prosecutorof similarly situated panelists.
The court properly exercised its discretion in denying defendant's challenge for causeto a prospective juror, as she never said anything that would "cast serious doubt on [her]ability to render an impartial verdict" (People v Arnold, 96 NY2d 358, 363[2001]). Viewed in context, any uncertainty she expressed related only to a purely [*2]hypothetical situation.
Defendant's pro se claims are without merit. Concur—Gonzalez, P.J.,Friedman, Saxe, Richter and Abdus-Salaam, JJ.