Opinion
3770.
Decided June 1, 2004.
Judgment, Supreme Court, New York County (Dora L. Irizarry, J.), rendered March 29, 2000, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.
Andrew C. Fine, The Legal Aid Society, New York (Annamatesha N. Beason of counsel), for appellant.
Edward Stevens, appellant pro se.
Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), for respondent.
Before: Buckley, P.J., Tom, Mazzarelli, Sullivan, Ellerin, JJ.
The court properly granted the People's Batson application ( Batson v. Kentucky, 476 U.S. 79; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824). The record supports the court's finding that defense counsel's purportedly employment-based race-neutral reason for exercising a peremptory challenge was transparently pretextual, and this finding is entitled to great deference ( see People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352). Defense counsel's concession that she found another panelist with the same occupation but different ethnicity to be acceptable cast doubt on the credibility of her explanation. Furthermore, defense counsel's alternate explanation concerning the challenged panelist's future husband's occupation was specious.
The prosecutor was under no obligation to enter into a stipulation to cure his witness's allegedly false testimony, since "there was no objectively `false' testimony to 'correct'" ( People v. Smith, 248 A.D.2d 148). On redirect examination, the prosecutor sufficiently clarified whether the victim had been interviewed prior to trial, and the witness's prior contradictory responses during cross-examination apparently resulted from his difficulty in understanding and speaking English. Moreover, defendant did not conduct any recross-examination, and he declined the opportunity to call an available witness, other than the trial prosecutor, who was present during the victim's trial preparation interview.
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit ( see People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899). In Rosen, the Court of Appeals made an authoritative interpretation of the state statutory scheme regarding persistent felony offenders, in which it construed the statutes in question so as to uphold their constitutionality ( see e.g. People v. Bailey, 21 N.Y.2d 588, 596; see also Ring v. Arizona, 536 U.S. 584, 603). Accordingly, defendant's sentence did not violate Apprendi v. New Jersey ( 530 U.S. 466). We further find that the court properly exercised its discretion in sentencing defendant as a persistent felony offender.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.