PEOPLE v. HOLLAND (2004)

Defendant appeals from a judgment convicting her, upon a jury verdict, of manslaughter in the second degree (Penal Law § 125.15[1] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ).   Supreme Court properly determined that the People provided race-neutral explanations for exercising peremptory challenges with respect to two prospective jurors (see generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   Moreover, the court's determination that the explanations were not pretextual is entitled to great deference (see People v. Linen, 5 A.D.3d 1022, 1022-1023, 773 N.Y.S.2d 330).

Defendant's constitutional challenge to Penal Law § 70.25(2) is lacking in merit (see generally Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435).   Defendant's sentence is not unduly harsh or severe, and the court did not abuse its discretion in denying defendant's request for youthful offender status.   We agree with defendant, however, that the court erred in directing that the sentence imposed on the count charging criminal possession of a weapon in the second degree run consecutively to the sentence imposed on the offense of manslaughter in the second degree because there was no separate evidence of intent to intimidate the victim (see People v. Miles, 288 A.D.2d 877, 877-878, 732 N.Y.S.2d 765, lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 618, 769 N.E.2d 364).   Consequently, we modify the judgment by directing that the sentences shall run concurrently.

Finally, defendant failed to preserve her remaining contention for our review (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6] [a] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentences shall run concurrently and as modified the judgment is affirmed.

MEMORANDUM: