People v Florestal

People v Florestal 2011 NY Slip Op 08649 Decided on November 29, 2011 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 November 29, 2011
Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.
6175 2854/04

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

v

Jovannie Florestal, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Susan H. Salomon of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice
Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 16, 2010, convicting defendant, after a jury trial, of murder in the second degree, and sentencing her to a term of 25 years to life, unanimously affirmed.

The court properly granted the People's reverse-Batson application (see Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court's finding, which is entitled to great deference, that since counsel failed to challenge non-Asian panelists possessing the same views as those cited as race-neutral reasons for challenging the panelist at issue, those reasons were pretextual (see e.g. People v Lozado, 303 AD2d 270 [2003], lv denied 100 NY2d 563 [2003]).

Defendant's argument that the trial court failed to follow the Batson protocol is unpreserved (see People v Richardson, 100 NY2d 847, 853 [2003]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court correctly followed the three-step Batson procedure, and properly found pretext based on its own "founded and articulated rejection of the race-neutral reason" offered by defense counsel (People v Payne, 88 NY2d 172, 184 [1996]). Even if "the court may have used the wrong nomenclature in describing its step-three ruling" (People v Washington, 56 AD3d 258, 259 [2008], lv denied 11 [*2]NY3d 931 [2009]), a defect that could have been cured immediately had defendant made a contemporaneous objection, it is clear from the surrounding context that the court's ultimate ruling was a finding of pretext.

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

ENTERED: NOVEMBER 29, 2011

CLERK