PEOPLE v. PANLITZ (2022)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered November 2, 2018, convicting defendant, after a jury trial, of sexual abuse in the first degree and forcible touching, and sentencing him to an aggregate term of 6 months, with 10 years’ probation, unanimously affirmed.

The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).  The “totality of all the relevant facts and circumstances” (People v. Hecker, 15 N.Y.3d 625, 664, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010]) supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual.  Such a finding, based primarily on the court's assessment of the attorney's credibility, is entitled to great deference (see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 [2008];  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, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991]).  Each of the proffered nondiscriminatory reasons had a legitimate basis (see Hecker, 15 N.Y.3d at 663–664, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010];  People v. Wint, 237 A.D.2d 195, 197–199, 655 N.Y.S.2d 469 [1st Dept. 1997], lv denied 89 N.Y.2d 1103, 660 N.Y.S.2d 397, 682 N.E.2d 998 [1997]), and defendant failed to establish any disparate treatment by the prosecutor of panelists whose situations were completely similar.  We also note that defendant made only a weak prima facie case of discrimination, which is relevant to the issue of pretext (see Hecker, 15 N.Y.3d at 660, 917 N.Y.S.2d 39, 942 N.E.2d 248).

The court providently exercised its discretion in denying defendant's mistrial motion, based on a remark in the prosecutor's summation that was allegedly inaccurate or misleading.  In context, the comment was not prejudicial, and the court offered to provide a curative instruction that would have sufficed, but defendant declined that remedy.  Defendant's remaining claims of prosecutorial misconduct are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.