People v. Franklin

• Citation: 671 N.Y.S.2d 270,248 A.D.2d 726
• Parties: 1998 N.Y. Slip Op. 2974 The PEOPLE, etc., Respondent, v. Gilbert FRANKLIN, Appellant.
• Decision Date: 30 March 1998
• Court: New York Supreme Court — Appellate Division

Page 270

671 N.Y.S.2d 270

1998 N.Y. Slip Op. 2974

The PEOPLE, etc., Respondent, v. Gilbert FRANKLIN, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

March 30, 1998.

Martin Geoffrey Goldberg, Franklin Square, for appellant.

William L. Murphy, District Attorney, Staten Island (Karen F. McGee and Jonathan J. Silbermann, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered September 12, 1995, convicting him of murder in the second degree, attempted murder in the first degree, attempted murder in the second degree (four counts), assault in the second degree, criminal possession of a weapon in the second degree (five counts), criminal possession of a weapon in the third degree (four counts), and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of various crimes arising from two separate shooting sprees. On appeal, he argues that the court erred in denying two of his challenges for cause made during jury selection. However, because the defendant did not exhaust his peremptory challenges, this claim is unpreserved for appellate review (see, CPL 270.20[2]; People v. Guzman, 76 N.Y.2d 1, 4, 556 N.Y.S.2d 7, 555 N.E.2d 259; People v. Simmons, 218 A.D.2d 677, 630 N.Y.S.2d 503).

The defendant also argues that the court erred when it found that the People, in support of a reverse Batson challenge, had established a prima facie case that the defense was using its peremptory challenges for the impermissible discriminatory purpose of striking all white male venirepersons (see, People v. Childress, 81 N.Y.2d 263, 598 N.Y.S.2d 146, 614 N.E.2d 709; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50). However, because the court ruled on the ultimate issue of whether the race-neutral reasons proffered by the defense were pretextual, the issue of whether or not the People established a prima facie case of discrimination is moot (see, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542; People v. Jones, 204 A.D.2d 485, 611 N.Y.S.2d 640). Further, the court did not err in holding certain race-neutral reasons proffered by the defense to be pretextual (see, People v. Liang Jun Ying, 236 A.D.2d 630, 654 N.Y.S.2d 389; People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).

The defendant's remaining contentions...