People v. Herrod, 312

• Decision Date: 05 July 2019
• Docket Number: KA 16–01481,312
• Parties: The PEOPLE of the State of New York, Respondent, v. Antone HERROD, Also Known as Tone, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1322
101 N.Y.S.3d 804

The PEOPLE of the State of New York, Respondent,
v.
Antone HERROD, Also Known as Tone, Defendant–Appellant.

312
KA 16–01481

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

Entered: July 5, 2019

THE KINDLON LAW FIRM, PLLC, ALBANY (LEE C. KINDLON OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

174 A.D.3d 1323

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). We previously held the case, reserved decision, and remitted the matter to County Court to allow the People, in response to defendant's Batson application, to articulate a nondiscriminatory reason for striking an African–American juror and for the court to determine whether the proffered reason was pretextual ( People v. Herrod , 163 A.D.3d 1462, 79 N.Y.S.3d 839 [4th Dept. 2018] ). Upon remittal, the court determined that the People offered a non-pretextual, race-neutral reason for excluding the prospective juror at issue. We now affirm.

We conclude that the People met their burden at step two of the Batson analysis to articulate a "race-neutral reason" for striking the prospective juror ( People v. Hecker , 15 N.Y.3d 625, 655, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ; see Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986] ). At the remittal hearing, the prosecutor testified that he struck the prospective juror because he was a crime victim who expressed some dissatisfaction with the manner in which the crime against him had been prosecuted and because he made statements suggesting that he might be receptive to defendant's potential justification defense. We conclude that this was sufficient to satisfy the People's "quite minimal" burden of providing a race-neutral reason for striking the juror ( People v. Payne , 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ; see People v. Grant , 128 A.D.3d 1088, 1090, 9 N.Y.S.3d 403 [2d Dept. 2015] ; People v. Ramos , 124 A.D.3d 1286, 1287, 999 N.Y.S.2d 295 [4th Dept. 2015], lv denied 25 N.Y.3d 1076, 12 N.Y.S.3d 627, 34 N.E.3d 378 [2015], reconsideration denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ).

We further conclude that the court did not abuse its discretion in determining that the prosecutor's explanation for the peremptory challenge was not pretextual (see People v. Farrare , 118 A.D.3d 1477, 1477–1478, 989 N.Y.S.2d 202 [4th Dept. 2014], lv denied 23 N.Y.3d 1061, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ). It

101 N.Y.S.3d 806

is immaterial that the prospective juror stated that he would not hold against...