PEOPLE v. HARDY (2009)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 8, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony drug offender, to an aggregate term of 6 years, unanimously affirmed.

 The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   The prosecutor explained that she had challenged the panelist at issue because she believed the panelist, as an aspiring social worker, might be sympathetic to the defense.   This was a non-pretextual reason (see People v. Wint, 237 A.D.2d 195, 197-198, 655 N.Y.S.2d 469 [1997], lv. denied 89 N.Y.2d 1103, 660 N.Y.S.2d 397, 682 N.E.2d 998 [1997] ).   Defense counsel then argued that this reason was pretextual and the court, by permitting the peremptory challenge to stand, implicitly rejected the pretext argument and found the proffered reason nonpretextual (see People v. Pena, 251 A.D.2d 26, 34, 675 N.Y.S.2d 330 [1998], lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282 [1998];  compare Dolphy v. Mantello, 552 F.3d 236, 239 [2d Cir.2009] ).   This finding is entitled to great deference and is supported by the record (see People v. Hernandez, 75 N.Y.2d 350, 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] ).   Defendant argues that the prosecutor's failure to challenge panelists who were similarly situated, except as to national origin, later in jury selection demonstrated that the challenge was pretextual.   However, defendant did not ask the court to revisit its completed Batson determination on the basis of these new developments.   We find this argument unpreserved, and we decline to review it in the interest of justice.   In this case, “an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable” (Snyder v. Louisiana, 552 U.S. ----, 128 S.Ct. 1203, 1211, 170 L.Ed.2d 175 [2008] ).   As an alternative holding, we also reject it on the merits. Although a subsequent panelist also had a background in social work, the prosecutor actually exercised a peremptory challenge against her, and only after no other questioned panelist remained did the prosecutor permit her to serve as the second alternate juror, a position likely to prove superfluous in a short trial.   Accordingly, there was no disparate treatment of comparable panelists.   We have considered and rejected defendant's remaining arguments on the Batson issue.

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.   The comments that defendant characterizes as vouching were permissible record-based credibility arguments (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).