PEOPLE v. THOMAS

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

The PEOPLE of the State of New York, Respondent, v. Darrell THOMAS, Defendant-Appellant.

Decided: August 10, 2000

ELLERIN, J.P., RUBIN, SAXE and BUCKLEY, JJ. William McGuire, for Respondent. Martin M. Lucente, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered December 17, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to a term of 12 1/212 to 25 years, consecutive to two concurrent terms of 2 1/212 to 5 years, respectively, unanimously affirmed.

 Defendant's Batson application (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied.   After the prosecutor came forward with race-neutral explanations for the challenges at issue, defendant did not contest any of the prosecutor's explanations.   Thus, defendant has failed to preserve this issue for appellate review (see, People v. Allen, 86 N.Y.2d 101, 111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the record supports the court's finding that the prosecutor's explanations were not pretextual, a finding entitled to great deference on appeal (see, People v. Hernandez, 75 N.Y.2d 350, 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).

 Defendant's request for a justification charge was properly denied.   Under the circumstances of this case, viewed in the light most favorable to defendant, we find no reasonable view of the evidence which would support a justification defense (see, People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188).   The evidence clearly established that defendant was the initial aggressor and that the exception contained in Penal Law § 35.15(b) did not apply, that defendant used excessive force, and that defendant was obligated to retreat.   As to each of these issues, there was no reasonable view to the contrary.

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.