People v. Florestal

The court properly granted the People’s reverse-Batson application (see Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court’s finding, which is entitled to great deference, that since counsel failed to challenge non-Asian panelists possessing the same views as those cited as race-neutral reasons for challenging the panelist at issue, those reasons were pretextual (see e.g. People v Lozado, 303 AD2d 270 [2003], lv denied 100 NY2d 563 [2003]).

Defendant’s argument that the trial court failed to follow the Batson protocol is unpreserved (see People v Richardson, 100 NY2d 847 , 853 [2003]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court correctly followed the three-step Batson procedure, and properly found pretext based on its own “founded and articulated rejection of the race-neutral reason” offered by defense counsel (People v Payne, 88 NY2d 172 , 184 [1996]). Even if “the court may have used the wrong nomenclature in describing its step-three ruling” (People v Washington, 56 AD3d 258 , 259 [2008], lv denied 11 NY3d 931 [2009]), a defect that could have been cured immediately had defendant made a contemporaneous objection, it is clear from the surrounding context that the court’s ultimate ruling was a finding of pretext. Concur — Saxe, J.E, Friedman, Renwick, DeGrasse and Freedman, JJ.