Opinion
312 KA 16–01481
07-05-2019
The PEOPLE of the State of New York, Respondent, v. Antone HERROD, Also Known as Tone, Defendant–Appellant.
THE KINDLON LAW FIRM, PLLC, ALBANY (LEE C. KINDLON OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE KINDLON LAW FIRM, PLLC, ALBANY (LEE C. KINDLON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). We previously held the case, reserved decision, and remitted the matter to County Court to allow the People, in response to defendant's Batson application, to articulate a nondiscriminatory reason for striking an African–American juror and for the court to determine whether the proffered reason was pretextual ( People v. Herrod , 163 A.D.3d 1462, 79 N.Y.S.3d 839 [4th Dept. 2018] ). Upon remittal, the court determined that the People offered a non-pretextual, race-neutral reason for excluding the prospective juror at issue. We now affirm.
We conclude that the People met their burden at step two of the Batson analysis to articulate a "race-neutral reason" for striking the prospective juror ( People v. Hecker , 15 N.Y.3d 625, 655, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ; see Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986] ). At the remittal hearing, the prosecutor testified that he struck the prospective juror because he was a crime victim who expressed some dissatisfaction with the manner in which the crime against him had been prosecuted and because he made statements suggesting that he might be receptive to defendant's potential justification defense. We conclude that this was sufficient to satisfy the People's "quite minimal" burden of providing a race-neutral reason for striking the juror ( People v. Payne , 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ; see People v. Grant , 128 A.D.3d 1088, 1090, 9 N.Y.S.3d 403 [2d Dept. 2015] ; People v. Ramos , 124 A.D.3d 1286, 1287, 999 N.Y.S.2d 295 [4th Dept. 2015], lv denied 25 N.Y.3d 1076, 12 N.Y.S.3d 627, 34 N.E.3d 378 [2015], reconsideration denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ).
We further conclude that the court did not abuse its discretion in determining that the prosecutor's explanation for the peremptory challenge was not pretextual (see People v. Farrare , 118 A.D.3d 1477, 1477–1478, 989 N.Y.S.2d 202 [4th Dept. 2014], lv denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ). It is immaterial that the prospective juror stated that he would not hold against the People any dissatisfaction he had with the manner in which the crime against him was handled. "[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual" ( Grant , 128 A.D.3d at 1090, 9 N.Y.S.3d 403 ). Moreover, the court did not err in crediting the prosecutor's proffered explanation given his testimony that he did not use a peremptory challenge against an African–American juror who, despite being a crime victim, was satisfied with the resolution of her case and that he did use peremptory challenges to strike several Caucasian prospective jurors for reasons similar to those offered in support of his decision to strike the prospective juror at issue here (see Ramos , 124 A.D.3d at 1287, 999 N.Y.S.2d 295 ). The court was in the best position to evaluate the demeanor of the prospective juror, the prosecutor, and defense counsel, and we conclude that its determination that the prosecutor's proffered reasons for striking the prospective juror were not pretextual is entitled to great deference (see People v. Hernandez , 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ; People v. Dandridge , 26 A.D.3d 779, 780, 809 N.Y.S.2d 353 [4th Dept. 2006] ).
We have considered defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.