People v Marrero

People v Marrero 2007 NY Slip Op 08884 [45 AD3d 406] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
Hector Marrero, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York City (Andrew M. Purdy of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered March 30, 2005, convicting defendant, after a jury trial, of robbery in the second degree, three counts of grand larceny in the fourth degree and two counts of criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 6½ years, reversed, on the law, and the matter remanded for a new trial.

For the reasons stated in our decision on the codefendant's appeal (People v Perez, 37 AD3d 152 [2007]), defendant is entitled to a new trial. We have considered and rejected the People's preservation arguments. Concur—Mazzarelli, J.P., Andrias, Friedman and Malone, JJ.

McGuire, J., concurs in a separate memorandum as follows: I agree that defendant's Batson claim is preserved for review. As for the merits, I would uphold the trial court's finding of a Batson violation solely as to prospective juror Mehertu. The prosecutor was unable to recall why he had exercised a peremptory challenge to Mehertu during an earlier round of voir dire and thus did not come forward with a "race-neutral" reason for the challenge. Given the deference that is due to the trial court on the issue of whether the People's [*2]Batson explanations are pretextual (People v Perez, 37 AD3d 152 [2007]), I would not disturb the trial court's finding as to Mehertu.