People v. West

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered May 18, 1993, convicting him of attempted murder in the first degree (four counts), attempted aggravated assault upon a police officer (five counts), kidnapping in the second degree, robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

During jury selection, the defendant objected, pursuant to Batson v Kentucky ( 476 US 79 ), to the prosecution’s exercise of two peremptory challenges. On appeal, the defendant contends that the court erred in allowing one of those challenges. The prosecution proffered a race-neutral explanation for the chal: lenge at issue, thereby satisfying its obligation to provide facially neutral reasons for rejecting the juror (see, People v Payne, 88 NY2d 172 , 181; People v Allen, 86 NY2d 101 , 109-110). The burden then shifted to the defendant to demonstrate that the explanation was pretextual (see, People v Payne, supra, at 181 ). However, since the defendant did not then articulate any reason to conclude that the explanation was pretextual, that claim, now raised on appeal, is unpreserved for appellate review (see, People v Allen, supra, at 109-110 ; People v Morrison, 235 AD2d 553 ).

The defendant’s contention that the evidence was not legally sufficient to support his conviction of attempted murder in the first degree and attempted aggravated assault upon a police officer is also not preserved for appellate review (see, People v Bynum, 70 NY2d 858 ; People v Udzinski, 146 AD2d 245 ; CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Additionally, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, GPL 470.15 [5]).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80 ). Rosenblatt, J. P., Copertino, Krausman and Goldstein, JJ., concur.