People v. Florestal

Appellate Division of the Supreme Court of New York

People v. Florestal

89 A.D.3d 641, 934 N.Y.2d 16

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 29, 2011

StatusPublished

This text of 89 A.D.3d 641 (People v. Florestal) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Florestal, 89 A.D.3d 641, 934 N.Y.2d 16 (N.Y. Ct. App. 2011).

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Opinion

[642]*642The 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 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. Concur — Saxe, J.E, Friedman, Renwick, DeGrasse and Freedman, JJ.

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[642]*642The 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 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. Concur — Saxe, J.E, Friedman, Renwick, DeGrasse and Freedman, JJ.

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Bluebook (online)

89 A.D.3d 641, 934 N.Y.2d 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-florestal-nyappdiv-2011.

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