PEOPLE v. LEBRON

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

The PEOPLE, etc., Respondent, v. Wilfredo LEBRON, Appellant.

Decided: April 22, 2002

SANDRA J. FEUERSTEIN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, and BARRY A. COZIER, JJ. Andrew C. Fine, New York, NY, (John Schoeffel of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, NY, (Leonard Joblove and Phyllis Mintz of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.) rendered January 19, 2000, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defense counsel's representation to the court, made after conferring with the defendant, that the defendant waived his rights pursuant to People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, was a valid waiver of those rights (see CPL 260.20;  People v. Womack, 292 A.D.2d 402, 738 N.Y.S.2d 595;  People v. Smallwood, 225 A.D.2d 713, 639 N.Y.S.2d 938).   The fact that the defendant expressed a choice through trial counsel does not render the waiver invalid (see People v. Underwood, 201 A.D.2d 597, 598, 607 N.Y.S.2d 955).

 We find no merit in the defendant's claim that the court improperly rejected his race-neutral explanation for the peremptory strike of a prospective juror.   A peremptory challenge may be based on the prospective juror's identification as the victim of a crime or closeness to a crime victim (see People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263;  People v. Dixon, 202 A.D.2d 12, 17-18, 615 N.Y.S.2d 904).   Here, however, the defendant's challenge was based on the mistaken belief that one or more of the children of the prospective juror were crime victims, when in fact, there was no indiction that her children's deaths were anything but accidents.   Thus, the court properly concluded that the peremptory strike of that juror was based on her race (see People v. Jupiter, 210 A.D.2d 431, 432-433, 620 N.Y.S.2d 426).

The defendant's claim that the sentence enhancement provisions for persistent felony offenders set forth in Penal Law § 70.08 and CPL 400.16 violate the State and Federal constitutions is unpreserved for appellate review and, in any event, without merit (see People v. Rosen, 96 N.Y.2d 329, 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. Rice, 285 A.D.2d 617, 728 N.Y.S.2d 376).

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