PEOPLE v. GLENN

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

The PEOPLE of the State of New York, Respondent, v. Eduardo GLENN, Defendant-Appellant.

Decided: May 11, 2004

TOM, J.P., ANDRIAS, SAXE, SULLIVAN, MARLOW, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Eli R. Koppel of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered March 18, 2002, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 15 years and 3 1/212 to 7 years, respectively, 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.   Defendant did not preserve his contention that the court failed to follow the required three-step procedure (People v. Richardson, 100 N.Y.2d 847, 853, 767 N.Y.S.2d 384, 799 N.E.2d 607), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the issue of whether a prima facie showing of discrimination was made by defendant was neither moot nor conflated with the other Batson issues, since, although the prosecutor explained the peremptory challenges at issue, “a fair reading of the totality of the record establishes that the court did rule that there was no prima facie showing, and did not rule on the ultimate question of intentional discrimination” (People v. Ocasio, 253 A.D.2d 720, 678 N.Y.S.2d 257, lv. denied 92 N.Y.2d 1036, 684 N.Y.S.2d 501, 707 N.E.2d 456 [emphasis in original];  see also People v. Miller, 293 A.D.2d 342, 740 N.Y.S.2d 191, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232;  People v. Bowen, 286 A.D.2d 645, 730 N.Y.S.2d 436, lv. denied 97 N.Y.2d 702, 739 N.Y.S.2d 102, 765 N.E.2d 305).   The court did not “revisit” (People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275) the issue of whether a prima facie case had been established after proceeding to hear the prosecutor's race-neutral explanations.   Nevertheless, we note that when a court rules that a party making a Batson application has not established a prima facie case of unlawful discrimination, the inquiry should come to an end and there is no reason for the opposing party to set forth its explanations.   The record supports the court's determination that defendant failed to establish a prima facie case since the prosecutor only challenged two black prospective jurors and defendant failed to articulate any other facts or circumstances, such as that the prosecutor had failed to challenge other prospective jurors who were similarly situated to those who were challenged, which would support a prima facie showing of discrimination (see People v. Brown, 97 N.Y.2d 500, 507-508, 743 N.Y.S.2d 374, 769 N.E.2d 1266).

 The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).   Although the underlying facts of some of defendant's convictions were similar to the crime charged, these facts highlighted defendant's dishonesty and were highly relevant to his credibility.

 The verdict was not against the weight of the evidence.   Issues of credibility, including the weight to be given to inconsistencies in testimony and the inability of the police to recover the stolen money, were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

We perceive no basis for reducing the sentence.