PEOPLE v. PATTERSON

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

The PEOPLE, etc., respondent, v. Kevin PATTERSON, appellant.

Decided: November 29, 2004

FRED T. SANTUCCI, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and REINALDO E. RIVERA, JJ. Lynn W.L. Fahey, New York, N.Y. (Barbara Lerner of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Megan K. Maxson of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered May 5, 2003, convicting him of rape in the first degree, robbery in the first degree, assault in the first degree, sexual abuse in the first degree, and coercion in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 “Where a peremptory challenge is based upon a prospective juror's employment, the concerns regarding the employment must be related to the factual circumstances of the case, and the qualifications of the juror to serve on that case” (People v. Campos, 290 A.D.2d 456, 457, 736 N.Y.S.2d 108;  People v. Smith, 266 A.D.2d 570, 571, 699 N.Y.S.2d 104;  see People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).   Here, the defendant failed to relate the employment status of the juror whom he wished to challenge to the facts of the case, and no such relationship is apparent on the record.   Thus, the Supreme Court properly denied the defendant's peremptory challenge to this juror, as his explanation for the challenge was a pretext for gender discrimination (see People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542).

The defendant's constitutional challenge to his adjudication as a mandatory persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Norris, 5 A.D.3d 796, 773 N.Y.S.2d 591, lv. denied 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206;  People v. Hyatt, 2 A.D.3d 749, 768 N.Y.S.2d 651;  People v. Bryant, 2 A.D.3d 741, 768 N.Y.S.2d 659).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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