People v Rivera

People v Rivera 2012 NY Slip Op 00836 Decided on February 7, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2012
Saxe, J.P., Friedman, Catterson, Freedman, Manzanet-Daniels, JJ.
6737 6167/08

[*1]The People of the State of New York, Respondent,

v

Melody Rivera, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Adrienne
Gantt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E.
Seewald of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered July 10, 2009, as amended September 1, 2009 and September 22, 2009, convicting defendant, after a jury trial, of grand larceny in the fourth degree (two counts) and jostling, and sentencing her, as a second felony offender, to an aggregate term of 1½ to 3 years, unanimously affirmed.

The court properly denied defendant's application pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant failed to meet her burden of establishing that the prosecutor's facially nondiscriminatory reasons for peremptorily challenging two prospective jurors were pretextual (see People v Payne, 88 NY2d 172, 181 [1996]). The record supports the court's rejection of defendant's claims of pretext, and these findings, based primarily on the court's assessment of the prosecutor's credibility, are entitled to great deference (see Snyder v Louisiana, 552 US 472, 477 [2008]; People v Hernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]).

The prosecutor's overall impression of one of the panelists at issue was that she lacked the intellectual capacity to understand the case. The prosecutor explained that the other panelist at issue reacted angrily when the prosecutor mispronounced her name. There is no basis for disturbing the court's acceptance of these explanations as genuine. We do not find any disparate treatment by the prosecutor of similarly situated panelists.

Defendant did not preserve her challenge to a detective's testimony as to defendant's presence in a surveillance videotape, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2012 [*2]

CLERK