PEOPLE v. TUCKER

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

The PEOPLE of the State of New York, Respondent, v. Joseph TUCKER, Defendant-Appellant.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, New York (Karen M. Kalikow of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Richard Sullivan of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered April 3, 2003, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

 The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   After the prosecution explained its reasons for the challenges at issue, defense counsel remained silent and raised no objection when the court accepted these reasons as nonpretextual.   Thus, despite ample opportunity to do so, defendant failed to preserve his current claims for appellate review (People v. Smocum, 99 N.Y.2d 418, 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003];  People v. Allen, 86 N.Y.2d 101, 111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ), and we decline to review them in the interest of justice.   Were we to review defendant's claims, we would find that the record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual.   This finding is entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ), and we do not find any disparate treatment by the prosecutor of similarly situated panelists.   The court, which employed its unique opportunity to observe demeanor, properly accepted the prosecutor's concerns about the ability of each of the two panelists at issue to serve effectively and understand the prosecution's theory of the case (see e.g. People v. Rhodes, 3 A.D.3d 319, 769 N.Y.S.2d 881 [2004], lv. denied 2 N.Y.3d 764, 778 N.Y.S.2d 783, 811 N.E.2d 45 [2004] ).

We perceive no basis for reducing the sentence.