PEOPLE v. FORTUNATO

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

The PEOPLE, etc., respondent, v. Louis FORTUNATO, a/k/a George Navas, a/k/a Lewis Johnson, appellant.

Decided: February 24, 2009

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, EDWARD D. CARNI and WILLIAM E. McCARTHY, JJ. Lynn W.L. Fahey, New York, N.Y. (Tonya Plank of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, Muhammad Ikhlas, and Danielle Fenn of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered May 18, 2004, convicting him of robbery in the first degree, robbery in the second degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly granted the People's reverse Batson-Kern 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 court's determination that the facially race-neutral reasons proffered by defense counsel to explain the two peremptory challenges in question were 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. Boston, 52 A.D.3d 728, 728-729, 858 N.Y.S.2d 910;  People v. Quito, 43 A.D.3d 411, 412-413, 840 N.Y.S.2d 622;  People v. Thompson, 34 A.D.3d 852, 853, 824 N.Y.S.2d 682).

Moreover, contrary to the defendant's contention raised in Point I of his supplemental pro se brief, the defendant was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, contrary to the defendant's contention raised in Point II of his supplemental pro se brief, there was no Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215).

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