PEOPLE v. JOHNSON (2007)

 Defendant appeals from a judgment convicting her upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ).   We conclude that Supreme Court properly denied defendant's Batson challenge because defendant failed to meet her “ ultimate burden of persuading the court” that the People's race-neutral reasons for exercising a peremptory challenge with respect to an African-American juror were pretextual (People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   The court's credibility determination on that issue is entitled to great deference (see Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395;   People v. Crawford, 299 A.D.2d 848, 749 N.Y.S.2d 447, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739, 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292), and we see no reason to disturb it.   Defendant further contends that the court erred in denying her motion for a mistrial based on the alleged improper readback of testimony to the jury.   The record establishes, however, that defense counsel consented to the readback before the court responded to the jury's request and registered an objection only after the jury had announced that it had reached a verdict.   Under those circumstances, we conclude that defendant's contention is not preserved for our review (see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;  see also People v. Tolbert, 283 A.D.2d 930, 723 N.Y.S.2d 916, lv. denied 96 N.Y.2d 908, 730 N.Y.S.2d 806, 756 N.E.2d 94).   In addition, defendant failed to preserve for our review her contentions concerning the alleged legal insufficiency of the evidence to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Nickels, 37 A.D.3d 1110, 829 N.Y.S.2d 362).

 We reject defendant's further contention that the verdict is against the weight of the evidence on the issue of intent.   It is well settled that intent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime (see People v. Price, 35 A.D.3d 1230, 825 N.Y.S.2d 868;  see also People v. Smith, 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132), and on this record we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that, based on the theory of the defense that defendant's acts were accidental or negligent rather than intentional, the court properly instructed the jury concerning motive (see generally People v. Seppi, 221 N.Y. 62, 70-71, 116 N.E. 793;  People v. Giordano, 213 N.Y. 575, 583-584, 107 N.E. 1069;  People v. Ryan, 240 A.D.2d 775, 776, 658 N.Y.S.2d 527, lv. denied 90 N.Y.2d 910, 663 N.Y.S.2d 522, 686 N.E.2d 234).   Because defendant and the victim were not members of the same family or household (see CPL 530.11[1] ), the court properly refused to sentence defendant pursuant to Penal Law § 60.12. Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: