PEOPLE v. DAVIS (2000)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Perone, J.), rendered May 1, 1998, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the fifth degree, criminal use of drug paraphernalia in the second degree, endangering the welfare of a child, aggravated unlicensed operation of a motor vehicle, speeding in violation of Vehicle and Traffic Law § 1180, and failure to use a child safety seat in violation of Vehicle and Traffic Law § 1229-c, upon a jury verdict, and imposing sentence.   On the appeal, the defendant seeks to review the denial, after a hearing, of that branch of his omnibus motion which was to suppress statements he made to law enforcement officials.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant contends that the trial court erred in accepting the prosecutor's explanations for challenges to two black prospective jurors and one Hispanic prospective juror.   While a trial court is generally in the best position to evaluate whether a racially-neutral explanation for the exercise of a peremptory challenge is pretextual (see, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904), we find that the prosecutor's explanation for striking one of these jurors, i.e., that she had only a high school education, was pretextual under the circumstances of this case.   Accordingly, the defendant is entitled to a new trial.

The defendant's argument with respect to the suppression determination is not preserved for appellate review (see, People v. Turriago, 90 N.Y.2d 77, 659 N.Y.S.2d 183, 681 N.E.2d 350;  People v. Fung, 227 A.D.2d 173, 642 N.Y.S.2d 14;  People v. Lopez, 212 A.D.2d 549, 623 N.Y.S.2d 125).

MEMORANDUM BY THE COURT.