PEOPLE v. REID (2008)

Appeal by the defendant from a judgment of the County Court, Nassau County (Ayres, J.), rendered January 22, 2007, convicting him of criminal possession of marijuana in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 During jury selection, the defendant raised Batson challenges with respect to the prosecutor's use of peremptory challenges to strike three black prospective jurors (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   A Batson challenge involves a three-step analysis.   First, the defendant is required to establish a prima facie case of discrimination (see Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Luciano, 10 N.Y.3d 499, 860 N.Y.S.2d 452, 890 N.E.2d 214;  People v. Allen, 86 N.Y.2d 101, 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   If that burden is met, the prosecutor must set forth a neutral reason for the challenged strike (see People v. Allen, 86 N.Y.2d at 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).  “When defendant challenges as pretextual the People's explanation as to a particular juror, the inquiry has become factual in nature and moves to step three” (People v. Allen, 86 N.Y.2d at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173;  see People v. James, 99 N.Y.2d 264, 271, 755 N.Y.S.2d 43, 784 N.E.2d 1152).   In step three, the trial court resolves the factual dispute of whether the prosecutor intended to discriminate (see People v. James, 99 N.Y.2d 264, 271, 755 N.Y.S.2d 43, 784 N.E.2d 1152;  People v. Allen, 86 N.Y.2d at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   If the court concludes that a proffered reason is pretextual, a defendant has met his or her burden of proving intentional discrimination (see People v. Allen, 86 N.Y.2d at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).

The court properly denied the defendant's first Batson challenge because the defendant failed to meet his burden of demonstrating a prima facie case of discrimination (see People v. Booker, 49 A.D.3d 658, 659, 854 N.Y.S.2d 430;  People v. Severino, 44 A.D.3d 1077, 1078, 844 N.Y.S.2d 391;  People v. Lassiter, 44 A.D.3d 877, 877-878, 843 N.Y.S.2d 448;  People v. London, 38 A.D.3d 570, 571, 830 N.Y.S.2d 783).   The defendant's claim that the court should have revisited that first Batson challenge when confronted with the subsequent Batson challenges is unpreserved for appellate review (see People v. Booker, 49 A.D.3d at 659, 854 N.Y.S.2d 430;  People v. Thompson, 34 A.D.3d 852, 853, 824 N.Y.S.2d 682) and, in any event, without merit.

 The court properly denied the defendant's second Batson challenge because, after the prosecutor provided a neutral reason for the strike, the defendant failed to meet his burden of establishing, under the third prong of Batson, that the reason was pretextual (see People v. Booker, 49 A.D.3d at 659, 854 N.Y.S.2d 430;  People v. Thompson, 45 A.D.3d 876, 877, 847 N.Y.S.2d 114;  People v. Thompson, 34 A.D.3d at 853, 824 N.Y.S.2d 682).   The defendant's contention that the court deprived him of an opportunity to respond to the prosecutor's explanation is without merit.

The court properly denied the defendant's third Batson challenge.   When the prosecutor proffered a neutral reason for the strike, the defendant failed to show that the reason was pretextual (see People v. Booker, 49 A.D.3d at 659, 854 N.Y.S.2d 430;  People v. Thompson, 45 A.D.3d at 877, 847 N.Y.S.2d 114;  People v. Thompson, 34 A.D.3d at 853, 824 N.Y.S.2d 682).   Contrary to the defendant's contention, the court did not meld steps two and three of the Batson inquiry.