People v. Rosario

• Decision Date: 28 October 2010
• Citation: 77 A.D.3d 580,909 N.Y.S.2d 364
• Parties: The PEOPLE of the State of New York, Respondent, v. Caine ROSARIO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 364
77 A.D.3d 580

The PEOPLE of the State of New York, Respondent,
v.
Caine ROSARIO, Defendant-Appellant.

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

Oct. 28, 2010.

Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.

77 A.D.3d 580

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered May 11, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the fourth degree, and sentencing him to a term of 3 years' probation with 5 days' community service, unanimously affirmed.

The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]. Defendant failed to

77 A.D.3d 581

meet his burden of establishing that the prosecutor's facially race-neutral reasons for peremptorily challenging a prospective juror were pretextual ( see People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ), and the record supports the court's finding of nonpretextuality, which is entitled to great deference ( see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ). We reject defendant's arguments that the prosecutor's uneasiness about his perception that the prospective juror was excessively pro-prosecution was such an "absurd" reason as to not even be considered race-neutral, and that it was at least pretextual. The prosecutor had an ethical duty "to see that justice is done" and "must deal fairly with the accused" ( People v. Steadman, 82 N.Y.2d 1, 7, 603 N.Y.S.2d 382, 623 N.E.2d 509 [1993] ). The record fails to support defendant's claim that the prosecutor disparately treated a similarly situated panelist on the basis of race, since "[t]here were significant differences in the responses of the panelists and their demeanor" ( People v. Turner, 294 A.D.2d 192, 192, 743 N.Y.S.2d 78 [2002], lv. denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193 [2002] ). We also reject defendant's contention that the prosecutor gave "highly suspect" reasons for certain other peremptory challenges to which defendant does...