PEOPLE v. KENNERLY (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered March 25, 2003, convicting him of criminal contempt in the first degree and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction for criminal contempt in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

 The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied as he failed to make the requisite prima facie showing of discrimination.   It is incumbent upon the party making a Batson challenge to articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed (see People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709).   In support of his application, the defendant argued that the prosecutor used a peremptory challenge to strike the only black male juror, who indicated that he could be fair and impartial, from the first round of jury selection (see People v. James, 278 A.D.2d 340, 341, 717 N.Y.S.2d 346;  People v. Harrison, 272 A.D.2d 554, 708 N.Y.S.2d 433).   In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the Supreme Court properly determined that the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see People v. Harrison, supra;  People v. Phillips, 259 A.D.2d 565, 686 N.Y.S.2d 455).

However, as the People concede, criminal contempt in the second degree is a lesser-included offense of criminal contempt in the first degree pursuant to CPL 300.40(3)(b) (see People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471;  see also People v. Campbell, 269 A.D.2d 460, 703 N.Y.S.2d 498).   Accordingly, the defendant's conviction of criminal contempt in the second degree is vacated (see People v. Rodriguez, 7 A.D.3d 545, 776 N.Y.S.2d 79).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).