People v. Toliver
| Decision Date | 03 January 2013 |
| Citation | 2013 N.Y. Slip Op. 00018,102 A.D.3d 411,958 N.Y.S.2d 95 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Michael TOLIVER, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.
Michael Toliver, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September 13, 2010, convicting defendant, after a jury trial, of failure to verify registration information under the Sex Offender Registration Act (Correction Law art. 6–C) (three counts) and failure to verify annual registration information under that Act, and sentencing him to an aggregate term of 2 1/3 to 7 years, 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]. The record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges at issue were not pretextual. This determination, based primarily on the court's assessment of the challenging attorney's credibility, is entitled to great deference ( see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 [2008];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] ). The prosecutor explained that she had challengedthe three panelists at issue based, respectively, on their unusual clothing, educational background, and employment. The prosecutor was not required to show that these rationales were related to the facts of the case, and we find no basis to disturb the court's findings ( see People v. Hecker, 15 N.Y.3d 625, 656, 663–665, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010] ).
Defendant claims that the education-related explanation for one of the challenges was pretextual because, in a later round of jury selection after the Batson application had been denied, the prosecutor did not challenge another prospective juror with the same educational level. However, defendant did not make that claim at trial, and the prosecutor had no opportunity to explain the alleged disparity. We decline to review this unpreserved argument in the interest of justice. As an alternative holding, we...
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... ... Toliver, 102 A.D.3d 411, 411, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013], reconsideration denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ). Nor need the prosecutor's race-neutral reasons " rise to the level of a challenge for cause " ... ...
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... ... denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; Ross, 83 A.D.3d at 741742, 919 N.Y.S.2d 526 ). We note that the record does not establish that the prosecutor engaged in disparate treatment of other panelists similarly situated to the first prospective juror (see People v. Toliver, 102 A.D.3d 411, 412, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013], reconsideration denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ). Defendant's claim of pretext based on the allegedly disparate treatment of the second ... ...
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People v. Johnson
... ... Jiles , 158 A.D.3d 75, 79, 68 N.Y.S.3d 787 [4th Dept. 2017], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ; see People v. Toliver , 102 A.D.3d 411, 412, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013], reconsideration denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ). We decline to exercise our power to review that contention as a matter of discretion in the ... ...
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Toliver v. Sheahan
... ... at 73; see also id ... at 74 (explaining the notification process). B. Petitioner's SORA Designations 1. Petitioner's Initial Designation Petitioner was charged with sodomizing a 13-year-old male in a subway station on April 4, 1991. People v. Toliver , 629 N.Y.S.2d 746, 747 (1st Dep't 1995). After his first trial resulted in a hung jury, see People v. Toliver , 89 N.Y.2d 843, 844 (1996), Petitioner was convicted at a 1992 retrial of Criminal Sexual Act in the Second Degree, in violation of N.Y. Penal Law 130.45. (Dkt. #14-5 at ... ...