PEOPLE v. KIDKARNDEE (2007)

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered June 23, 2005, convicting defendant, after a jury trial, of attempted murder in the second degree, attempted assault in the first degree, assault in the second degree, and two counts of endangering the welfare of a child, and sentencing him to concurrent terms of 23 years, 15 years, 1 year and 1 year, respectively, unanimously affirmed.

The court properly granted the People's 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 finding of pretext, and this finding, based primarily on the court's assessment of counsel's credibility, is entitled to great deference (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, 356-357, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ).   Counsel's credibility in this regard was undermined by her failure to ask the panelist at issue any follow-up questions pertinent to the gender-neutral reason advanced for the peremptory challenge.

During jury selection, when defense counsel gave the panel a misleading impression of the elements of the crimes charged, the court properly gave the panel a correct explanation of those elements.   Defendant's remaining challenges to the court's preliminary remarks to the prospective jurors are unpreserved (see People v. Brown, 7 N.Y.3d 880, 826 N.Y.S.2d 595, 860 N.E.2d 55 [2006] ), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the preliminary instructions did not deprive defendant of a fair trial (see People v. Harper, 32 A.D.3d 16, 19, 818 N.Y.S.2d 113 [2006], affd. 7 N.Y.3d 882, 826 N.Y.S.2d 594, 860 N.E.2d 57 [2006] ).

We perceive no basis to reduce defendant's sentence.

Defendant's pro se contention is without merit.