Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Raphael PARNELL, appellant.

Decided: March 31, 2009

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, HOWARD MILLER, and RANDALL T. ENG, JJ. Steven Banks, New York, N.Y. (William B. Carney of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Melissa J. Feldman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J), rendered January 19, 2007, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court properly granted the People's reverse-Batson application (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235).   The record supports the court's finding of pretext with regard to the two prospective jurors at issue, and that 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).   Although defense counsel provided race-neutral reasons for challenging the two jurors, the record establishes that defense counsel did not challenge other jurors with similar backgrounds (see People v. McLaurin, 47 A.D.3d 843, 843, 849 N.Y.S.2d 162;  People v. Quito, 43 A.D.3d 411, 413, 840 N.Y.S.2d 622).   Accordingly, the two challenged jurors were properly seated.

 Further, the court properly concluded that a deliberating juror was not grossly unqualified to serve on the jury since, after expressing a generalized concern for his safety, he was not certain that he had seen the defendant in his neighborhood and he assured the court that he would remain fair and impartial (see CPL 270.35[1];  People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901;  People v. Banks, 33 A.D.3d 385, 385-386, 822 N.Y.S.2d 504;  People v. Bunch, 278 A.D.2d 501, 502, 717 N.Y.S.2d 385;  People v. Attanasio, 191 A.D.2d 447, 448, 594 N.Y.S.2d 299).

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

Copied to clipboard