People v Joseph Tucker

People v Tucker 2005 NY Slip Op 07634 [22 AD3d 353] October 18, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

The People of the State of New York, Respondent,
v
Joseph Tucker, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered April 3, 2003, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

The court properly denied defendant's application pursuant to Batson v Kentucky (476 US 79 [1986]). After the prosecution explained its reasons for the challenges at issue, defense counsel remained silent and raised no objection when the court accepted these reasons as nonpretextual. Thus, despite ample opportunity to do so, defendant failed to preserve his current claims for appellate review (People v Smocum, 99 NY2d 418, 423 [2003]; People v Allen, 86 NY2d 101, 111 [1995]), and we decline to review them in the interest of justice. Were we to review defendant's claims, we would find that the record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual. This finding is entitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]), and we do not find any disparate treatment by the prosecutor of similarly situated panelists. The court, which employed its unique opportunity to observe demeanor, properly accepted the prosecutor's concerns about the ability of each of the two panelists at issue to serve effectively and understand the prosecution's theory of the case (see e.g. [*2]People v Rhodes, 3 AD3d 319 [2004], lv denied 2 NY3d 764 [2004]).

We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Sweeny, JJ.