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People v. Thomas

275 A.D.2d 234 Court N.Y. App. Div. Decision date 2000-08-10 English

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p. 234
The People of the State of New York, Respondent, v Darrell Thomas, Appellant.
[712 NYS2d 35]

—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered December 17, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to a term of 12V2 to 25 years, consecutive to two concurrent terms of 21h to 5 years, respectively, unanimously affirmed.

Defendant’s Batson application (Batson v Kentucky, 476 US 79 ) was properly denied. After the prosecutor came forward with race-neutral explanations for the challenges at issue, defendant did not contest any of the prosecutor’s explanations. Thus, defendant has failed to preserve this issue for appellate

p. 235
review (see, People v Allen, 86 NY2d 101 , 111), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the record supports the court’s finding that the prosecutor’s explanations were not pretextual, a finding entitled to great deference on appeal (see, People v Hernandez, 75 NY2d 350 , affd 500 US 352 ).

Defendant’s request for a justification charge was properly denied. Under the circumstances of this case, viewed in the light most favorable to defendant, we find no reasonable view of the evidence which would support a justification defense (see, People v Watts, 57 NY2d 299 , 301). The evidence clearly established that defendant was the initial aggressor and that the exception contained in Penal Law § 35.15 (1) (b) did not apply, that defendant used excessive force, and that defendant was obligated to retreat. As to each of these issues, there was no reasonable view to the contrary.

We perceive no abuse of sentencing discretion. Concur— Ellerin, J. P., Rubin, Saxe and Buckley, JJ.

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