PEOPLE v. THOMPSON

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

The PEOPLE, etc., respondent, v. Terrell THOMPSON, appellant.

Decided: November 28, 2006

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, WILLIAM F. MASTRO, and JOSEPH COVELLO, JJ. Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Karen Wigle Weiss and Douglas Noll of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (LaPera, J.), rendered March 4, 2005, convicting of him murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the County Court erred in denying his Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) because the prosecutor's explanations for striking two black prospective jurors were pretextual.   However, since the defendant raised no objection to the prosecutor's explanations regarding those prospective jurors, his present contention is unpreserved for appellate review (see People v. Dandridge, 26 A.D.3d 779, 809 N.Y.S.2d 353;  People v. Harris, 294 A.D.2d 375, 741 N.Y.S.2d 715;  People v. Sumpter, 286 A.D.2d 450, 729 N.Y.S.2d 506).   In any event, the defendant's challenge was properly denied because he failed to satisfy his burden of demonstrating, under the third prong of the Batson analysis, that the facially race-neutral explanations given by the prosecutor were a pretext for racial discrimination (see People v. Payne, 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Gully, 17 A.D.3d 382, 792 N.Y.S.2d 199;  People v. Baxter, 15 A.D.3d 671, 789 N.Y.S.2d 916;  People v. Alston, 307 A.D.2d 1046, 763 N.Y.S.2d 764;  People v. Bermejo, 276 A.D.2d 560, 714 N.Y.S.2d 689;  People v. Redding, 262 A.D.2d 663, 694 N.Y.S.2d 673).

 Furthermore, the County Court correctly granted the prosecution's reverse-Batson objection, which was made when the defendant exercised a peremptory challenge to exclude a white female prospective juror.   Defense counsel, who allegedly had exercised seven prior peremptory challenges against white females, offered a facially race-neutral explanation for challenging the subject prospective juror.   After hearing the prosecutor's objection to this explanation, the County Court rejected it as pretextual, and disallowed the challenge.   The County Court's determination that the subject challenge was pretextual is entitled to great deference on appeal and will not be disturbed where, as here, it is supported by the record (see People v. Williams, 5 A.D.3d 705, 774 N.Y.S.2d 722;  People v. Alston, supra;  People v. Miller, 266 A.D.2d 478, 698 N.Y.S.2d 881).

 The defendant additionally argues that he was denied a fair trial because the victim's family members apparently pinned photographs of her to their clothing.   Defense counsel called this issue to the County Court's attention and requested that the family members be directed to remove the photographs.   The County Court immediately agreed to this request, and defense counsel did not request any additional relief, or move for a mistrial.   Under these circumstances, it must be deemed that the matter was cured to defense counsel's satisfaction, and thus the defendant's present contention is unpreserved for appellate review (see People v. Everson, 100 N.Y.2d 609, 767 N.Y.S.2d 389, 799 N.E.2d 613;  People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299;  People v. Smith, 294 A.D.2d 454, 741 N.Y.S.2d 744).   We decline to consider this issue in the exercise of our interest of justice jurisdiction since the defendant failed to develop a factual record sufficient to permit proper appellate review (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786;  People v. Caba, 23 A.D.3d 291, 808 N.Y.S.2d 13;  People v. Ramos, 282 A.D.2d 623, 723 N.Y.S.2d 382;  People v. Cantor, 248 A.D.2d 395, 669 N.Y.S.2d 832).

The County Court erred in admitting a photograph of the victim with her daughter, and brief testimony concerning the child's appearance and personality, since this evidence was not relevant to a material fact to be proved at trial (see People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  People v. Rodriguez, 1 A.D.3d 386, 766 N.Y.S.2d 863;  People v. Kershaw, 238 A.D.2d 523, 657 N.Y.S.2d 191;  People v. Dove, 233 A.D.2d 751, 650 N.Y.S.2d 444;  People v. Daughtry, 202 A.D.2d 686, 610 N.Y.S.2d 54).   However, the error was harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Stevens, supra;  People v. Rodriguez, supra;  People v. Kershaw, supra;  People v. Dove, supra;  People v. Daughtry, supra ).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit (see People v. Morris, 267 A.D.2d 1032, 700 N.Y.S.2d 897;  People v. Wilson, 267 A.D.2d 1061, 700 N.Y.S.2d 787;  People v. Weatherly, 246 A.D.2d 340, 668 N.Y.S.2d 368;  People v. Spencer, 226 A.D.2d 160, 640 N.Y.S.2d 512).

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