From Casetext: Smarter Legal Research

People v. Pena

Appellate Division of the Supreme Court of New York, First Department
Oct 28, 1999
265 A.D.2d 259 (N.Y. App. Div. 1999)

Opinion

October 28, 1999

Judgment, Supreme Court, New York County (John Stackhouse, J.).


The court properly denied defendant's challenge made pursuant toBatson v. Kentucky ( 476 U.S. 79). The record supports the court's conclusion that the reasons proffered by the prosecutor for exercising peremptory challenges against the two prospective jurors at issue were race-neutral and nonpretextual. A trial court's findings with respect to pretextuality are entitled to great deference (see, People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352), particularly where, as here, the court has employed its unique opportunity to observe demeanor in making its findings (see, People v. Barnes, 261 A.D.2d 281, 691 N.Y.S.2d 49).

The court properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the fifth degree. Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence that defendant committed the lesser offense but not the greater offense (see, People v. Butler, 248 A.D.2d 274, lv denied 91 N.Y.2d 1005). The evidence, including the testimony of the chemists, clearly established that the weight of the cocaine seized from defendant was several times the statutory threshold of 500 milligrams.

We find the sentence excessive to the extent indicated.

ELLERIN, P.J., NARDELLI, LERNER, ANDRIAS, FRIEDMAN, JJ.


Summaries of

People v. Pena

Appellate Division of the Supreme Court of New York, First Department
Oct 28, 1999
265 A.D.2d 259 (N.Y. App. Div. 1999)
Case details for

People v. Pena

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID PENA…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 28, 1999

Citations

265 A.D.2d 259 (N.Y. App. Div. 1999)
697 N.Y.S.2d 598

Citing Cases

People v. Sprague

ve jurors appeared to be "`very conservative'" and more "`receptive'" to the prosecutor as indicated by their…

People v. Sprague

019 — prospective jurors appeared to be "very conservative" and more "receptive" to the prosecutor as…