| People v Carrington |
| 2013 NY Slip Op 02587 [105 AD3d 970] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Carrington, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LoriGlachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered September 27, 2006, convicting him of murder in the seconddegree, attempted murder in the second degree, and criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In Batson v Kentucky (476 US 79, 94-98 [1986]), the United States SupremeCourt formulated a three-step test to assess whether peremptory challenges have beenused to exclude potential jurors on the basis of race, gender, or other protected categories(see People v Smocum, 99 NY2d 418, 421 [2003]). In step one, the moving partymust make a prima facie case of purposeful discrimination by "showing that the facts andcircumstances of the voir dire raise an inference that the other party excused one or morejurors for an impermissible reason" (id. at 421). If the moving party makes aprima facie showing, the inquiry proceeds to step two, and the burden shifts to theadversary to provide a facially neutral explanation for the challenge. If the nonmovingparty "offers facially neutral reasons supporting the challenge, the inference ofdiscrimination is overcome" (People v Allen, 86 NY2d 101, 109 [1995]). Oncefacially neutral reasons are provided, the inquiry proceeds to step three, and the burdenshifts back to the moving party to prove purposeful discrimination, and " 'the trial courtmust determine whether the proffered reasons are pretextual' " (People v Hecker, 15 NY3d625, 634-635 [2010], cert denied sub nom. Black v New York, 563 US—, 131 S Ct 2117 [2011], quoting People v Allen, 86 NY2d at 104),including whether the reasons apply to the facts of the case, and whether the reasonswere applied to only a particular class of jurors and not to others (see People vRichie, 217 AD2d 84, 89 [1995]). Here, the trial court's determination that theproffered reasons for challenging certain white jurors were pretextual is entitled to greatdeference on appeal and is supported by the record (see People v Occhione, 94 AD3d 1021, 1022 [2012]; People v Fogel, 73 AD3d803, 803-804 [2010]; People v Richie, 217 AD2d at 89). Therefore, theSupreme Court properly granted the People's reverse-Batson challenge (seePeople v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]) andseated the subject jurors.[*2]
It was improper for the trial court to permit thePeople to impeach their own witness since her testimony did not tend to disprove amaterial issue of the case (see CPL 60.35; People v Fitzpatrick, 40 NY2d44 [1976]; People vDunston, 100 AD3d 769, 770 [2012]; see also People v Andre, 185AD2d 276, 277 [1992]). However, the error was harmless because there wasoverwhelming evidence of the defendant's guilt, and no significant probability that thejury would have acquitted the defendant had it not been for the error (see People vSaez, 69 NY2d 802, 804 [1987]; People v Crimmins, 36 NY2d 230, 242[1975]; People vAbdur-Rahman, 69 AD3d 951 [2010]; People v Murillo, 256 AD2d423, 424 [1998]; People v Comer, 146 AD2d 794, 795 [1989]).
The defendant's remaining contentions are without merit. Dillon, J.P., Balkin, Austinand Sgroi, JJ., concur.