People v. Tsouristakis

• Decision Date: 24 March 2011
• Citation: 920 N.Y.S.2d 28,2011 N.Y. Slip Op. 02141,82 A.D.3d 612
• Parties: The PEOPLE of the State of New York, Respondent,v.Omar TSOURISTAKIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 612
920 N.Y.S.2d 28
2011 N.Y. Slip Op. 02141

The PEOPLE of the State of New York, Respondent,
v.
Omar TSOURISTAKIS, Defendant–Appellant.

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

March 24, 2011.

[920 N.Y.S.2d 29]

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice E. Lee and Joni Forster Galvin of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.MAZZARELLI, J.P., SAXE, FRIEDMAN, ACOSTA, FREEDMAN, JJ.

[82 A.D.3d 612] Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered August 10, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third and fifth degrees and unlawful possession of marijuana, and sentencing him to an aggregate term of 5 years, with a fine of $100, unanimously affirmed.

The court properly granted the People's reverse- Batson application ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [1990], cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 [1990] ).

[920 N.Y.S.2d 30]

The record supports the court's finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual. These findings, based primarily on the court's assessment of counsel's credibility, are 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, 356, 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] ). Initially, we note that the People made a strong prima facie case of discrimination against Asian–Americans, and the strength of that showing is relevant to the issue of pretext ( see People v. Hecker, 15 N.Y.3d 625, 660, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010] ). The court correctly [82 A.D.3d 613] followed the three-step Batson procedure, and properly found pretext based on its own “founded and articulated rejection of the race-neutral reason[s]” offered by defense counsel ( People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996]; see also People v. Camarena, 289 A.D.2d 7, 734 N.Y.S.2d 14 [2001], lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002] ). Although defense counsel's principal explanation was...