PEOPLE v. RIVERA (2000)

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered June 25, 1997, convicting defendant, after a jury trial, of burglary in the first degree, and sentencing him, as a second violent felony offender, to a term of 18 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The evidence supports reasonable inferences that when defendant produced a folded knife he was threatening to use it against the complainants (see, People v. Pena, 50 N.Y.2d 400, 408-409, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814), as part of his continuing efforts at immediate flight (see, People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919).

 The court properly granted the People's application made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   The record, when viewed as a whole, establishes that the court made a stage-three determination that defense counsel's reasons were pretextual (see, People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, 666 N.E.2d 542).   The court required defense counsel to disclose his reasons for the challenges, which were facially race-neutral, and then listened to the prosecutor's arguments before making a determination upholding the “reverse-Batson ” challenge.   Under these circumstances, the court's ruling was clearly an indication that the reasons given were pretextual (People v. Pena, 251 A.D.2d 26, 34, 675 N.Y.S.2d 330, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282).   The context of the court's use of the phrase “not race-neutral” establishes that it was intended to mean “pretextual”.   The record supports a finding that defense counsel's reasons for challenging white jurors were pretextual where defense counsel had failed to challenge similarly situated Hispanic jurors (People v. Castro, 265 A.D.2d 221, 697 N.Y.S.2d 15, lv. denied 94 N.Y.2d 878, 705 N.Y.S.2d 9, 726 N.E.2d 486).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Mattiace, 77 N.Y.2d 269, 275-276, 567 N.Y.S.2d 384, 568 N.E.2d 1189;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).

 Although the court's charge on credibility of witnesses contained a “slip of the tongue” in which the court substituted the word “defendant” for “complainant”, and then corrected itself, there is no reasonable possibility that the jury could have been misled.

 We perceive no abuse of discretion in sentencing.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

MEMORANDUM DECISION.