PEOPLE v. LEARY (2007)

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered April 16, 2003, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/212 to 9 years, unanimously affirmed.

 The court properly granted the People's reverse-Batson application (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986];  People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [1990], cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 [1990] ).   The record supports the court's express and implied findings (see People v. Payne, 88 N.Y.2d 172, 185, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ) that the race-neutral reasons provided by defense counsel for the peremptory challenges at issue were pretextual.   These findings, based primarily on the court's assessment of counsel's credibility, are 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 [1990] ).   With regard to all of the challenges at issue, counsel's explanations were “outlandish or entirely evanescent” (People v. Payne, 88 N.Y.2d at 183, 643 N.Y.S.2d 949, 666 N.E.2d 542).   To the extent that defendant is challenging the procedures by which the court disposed of the application, such claim is unpreserved (see People v. Jenkins, 302 A.D.2d 247, 248, 756 N.Y.S.2d 151 [2003], lv. denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it (see People v. Hameed, 88 N.Y.2d 232, 237, 644 N.Y.S.2d 466, 666 N.E.2d 1339 [1996], cert. denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 [1997];  People v. Payne, 88 N.Y.2d at 184, 643 N.Y.S.2d 949, 666 N.E.2d 542).

 The court properly exercised its discretion in denying defendant's mistrial motion made after an officer testified about possible uncharged sales that the court had excluded.   The evidence was not so prejudicial as to deprive defendant of a fair trial.   Since defendant abandoned his request for a limiting instruction, which the court had agreed but omitted to deliver, defendant's present claim of error in that regard is unpreserved (see People v. Baro, 236 A.D.2d 307, 654 N.Y.S.2d 736 [1997], lv. denied 89 N.Y.2d 1032, 659 N.Y.S.2d 862, 681 N.E.2d 1309 [1997] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find any error to be harmless.