PEOPLE v. BORKOWSKI

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Matthew J. BORKOWSKI, Appellant.

Decided: February 04, 1998

Before PINE, J.P., and HAYES, WISNER, BALIO and FALLON, JJ. Linda S. Reynolds by Mary Good, Buffalo, for appellant. Frank J. Clark by Lisa Yaeger, Buffalo, for respondent.

 Defendant appeals from a judgment convicting him after a jury trial of attempted rape in the first degree and unlawful imprisonment in the second degree.   We reject his contention that the prosecutor's exercise of a peremptory challenge constitutes a Batson violation (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   County Court properly determined that the prosecutor offered a race-neutral explanation for her challenge, i.e., that the black prospective juror appeared indecisive and likely to be easily led by other jurors (see, State v. Murray, 184 Ariz. 9, 24-25, 906 P.2d 542, 557-558, cert. denied 518 U.S. 1010, 117 S.Ct. 193, 136 L.Ed.2d 130, 518 U.S. 1010, 116 S.Ct. 2535, 135 L.Ed.2d 1057;  People v. Crittenden, 9 Cal.4th 83, 116-118, 36 Cal.Rptr.2d 474, 885 P.2d 887, 903-905, cert. denied 516 U.S. 849, 116 S.Ct. 144, 133 L.Ed.2d 90;  State v. Gonzalez, 206 Conn. 391, 404-405, 538 A.2d 210, 217).   The court's determination is entitled to great deference (see, People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395), and we perceive no basis to disturb it.

 We also reject the contention that the prosecutor's allegedly improper comments during summation deprived defendant of a fair trial.   The comments “were within the wide rhetorical bounds granted to the prosecutor to comment * * * in response to defense counsel's summation” (People v. Price, 144 A.D.2d 1013, 535 N.Y.S.2d 281, lv. denied 73 N.Y.2d 895, 538 N.Y.S.2d 807, 535 N.E.2d 1347) and, in any event, were not so egregious that defendant was deprived of a fair trial (see, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348;  cf., People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307).

 Defendant failed to preserve for our review his contentions that the conviction of unlawful imprisonment in the second degree merged with the conviction of attempted rape in the first degree and that the evidence is legally insufficient to support the conviction of attempted rape (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Salimi, 159 A.D.2d 658, 552 N.Y.S.2d 964, lv. denied 76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200).   We decline to exercise our power to address those contentions as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).   We further conclude that the sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: