PEOPLE v. HEWITT (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered May 22, 1997, convicting him of murder in the second degree, kidnapping in the first degree, manslaughter in the first degree, and tampering with physical evidence (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Demakos, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The trial court properly refused to suppress the defendant's statements made to a detective in Atlanta, Georgia, before Miranda warnings were issued because the statements were not elicited through impermissible interrogation (see, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297;  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Ferro, 63 N.Y.2d 316, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).

 We find no basis for overturning the trial court's decision that the defendant's challenge of a juror based on his status as a crime victim was pretextual because he did not apply this facially-neutral reason to two other prospective jurors similarly situated (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).   Moreover, the defense counsel's explanation for his challenge was intuitive and based on his subjective impression of the prospective juror rather than upon facts adduced at voir dire (see, People v. Garrastazu, 238 A.D.2d 354, 656 N.Y.S.2d 305).

 The trial court granted the defendant's request for a charge of justification pursuant to Penal Law § 35.15(2)(c) and § 35.20(3) with respect to the charges of intentional murder and manslaughter in the first degree.   Based on the evidence elicited at trial, we conclude that the court erred in failing to charge justification with respect to the charges of felony murder and kidnapping.   However, the error was harmless since the jury, by convicting the defendant of manslaughter in the first degree, necessarily rejected the claim that he reasonably believed his actions were necessary to defend against a burglary.

 The court charged intoxication with respect to the crime of intentional murder but erroneously failed to specifically charge intoxication with respect to the lesser-included crime of manslaughter in the first degree (see, People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 462 N.E.2d 143).   We conclude that the error was harmless, however, as the court later instructed the jury in general that evidence of intoxication may be considered in determining whether the defendant possessed the requisite criminal intent.   Moreover, since the court specifically charged the jury on intoxication with respect to the crimes of kidnapping in the first degree and tampering with evidence, and the defendant was convicted of those crimes, the jury clearly rejected the claim of intoxication.

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.