The People of the State of New York, Respondent, v. Omar Tsouristakis, Defendant-Appellant. (2011)

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Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered August 10, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third and fifth degrees and unlawful possession of marijuana, and sentencing him to an aggregate term of 5 years, with a fine of $100, unanimously affirmed.

The court properly granted the People's reverse-Batson application (see Batson v. Kentucky, 476 U.S. 79 [1986];  People v. Kern, 75 N.Y.2d 638 [1990], cert denied 498 U.S. 824 [1990] ).   The record supports the court's finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual.   These findings, based primarily on the court's assessment of counsel's credibility, are entitled to great deference (see Snyder v. Louisiana, 552 U.S. 472, 477 [2008];  People v. Hernandez, 75 N.Y.2d 350, 356 [1990], affd 500 U.S. 352 [1991] ).   Initially, we note that the People made a strong prima facie case of discrimination against Asian-Americans, and the strength of that showing is relevant to the issue of pretext (see People v. Hecker, 15 NY3d 625, 660 [2010] ).   The court correctly followed the three-step Batson procedure, and properly found pretext based on its own “founded and articulated rejection of the race-neutral reason[s]” offered by defense counsel (People v. Payne, 88 N.Y.2d 88 N.Y.2d 172, 184 [1996];  see also People v. Camarena, 289 A.D.2d 7 [2001], lv denied 97 N.Y.2d 752 [2002] ).   Although defense counsel's principal explanation was that he knew very little about the panelist, counsel ended his voir dire with five minutes of his allotted time to spare, and without asking any questions of the prospective juror (see People v. Kidkarndee, 41 AD3d 247 [2007], lv denied 9 NY3d 923 [2007];  compare Hecker, 15 NY3d at 657-658 [lack of information not pretextual reason for challenge where court's time constraints prevented attorney from questioning panelist] ).   Moreover, counsel failed to challenge non-Asian panelists about whom he had little information.   The record also supports the court's refusal to credit counsel's claim that he was concerned about the panelist's knowledge of English.   Finally, although counsel claimed the panelist expressed a negative attitude toward firearms, the court had no recollection of any such statement by this panelist, and the record does not confirm counsel's assertion.

The court properly denied defendant's suppression motion.   The officer's observation of defendant rolling marijuana cigarettes in his car provided probable cause for an arrest (see Matter of Javier N., 226 A.D.2d 178 [1996] ).   Although the officer did not specifically testify as to his experience and training regarding marijuana, his general police experience and training permitted the inference that he could identify marijuana, for probable cause purposes, under the circumstances he observed.

To the extent a portion of the prosecutor's summation could be viewed as shifting the burden of proof, the court's thorough curative actions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865 [1981] ).   The prosecutor did not vouch for his witnesses when he responded to the defense summation with proper arguments concerning the witnesses' motives or lack of motives to give false testimony (see e.g. People v. Gonzalez, 298 A.D.2d 133 [2002], lv denied 99 N.Y.2d 614 [2003] ).   Defendant's remaining summation claims are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we find there was nothing so egregious as to deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 118-119 [1992], lv denied 81 N.Y.2d 884 [1993] ).

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007] ).   There is no basis for disturbing the jury's credibility determinations.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK