People
v.
Chery

Not overruled or negatively treated on appealinfoCoverage
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentApr 29, 2015
5 N.Y.S.3d 897 (N.Y. App. Div. 2015)
5 N.Y.S.3d 897127 A.D.3d 12272015 N.Y. Slip Op. 3557

2012-05043, Index No. 630/11.

04-29-2015

The PEOPLE, etc., respondent, v. Jean G. CHERY, appellant.

Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Diana Zloczower of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnette Traill, Anastasia Spanakos, and Josette Simmons–McGee of counsel), for respondent.


Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott and Diana Zloczower of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnette Traill, Anastasia Spanakos, and Josette Simmons–McGee of counsel), for respondent.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered May 14, 2012, convicting him of robbery in the second degree (two counts) and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. By decision and order dated May 21, 2014, this Court remitted the matter to the Supreme Court, Queens County, to hear and report on the defendant's challenge to the prosecutor's exercise of peremptory challenges against black venirepersons, and held the appeal in abeyance in the interim (see People v. Chery, 117 A.D.3d 962, 985 N.Y.S.2d 909 ). The Supreme Court, Queens County, has now filed its report.ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the prosecutor offered race-neutral explanations for exercising peremptory challenges to the two disputed venirepersons (see Purkett v. Elem, 514 U.S. 765, 767–768, 115 S.Ct. 1769, 131 L.Ed.2d 834 ; People v. Norris, 98 A.D.3d 586, 949 N.Y.S.2d 472 ). The burden then shifted to the defendant to demonstrate that the proffered explanations were a pretext for discrimination, which the defendant failed to carry (see People v. Allen, 86 N.Y.2d 101, 104, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ; People v. Wood, 117 A.D.3d 888, 985 N.Y.S.2d 724 ; People v. Norris, 98 A.D.3d at 586, 949 N.Y.S.2d 472 ; People v. Celestine, 243 A.D.2d 485, 665 N.Y.S.2d 278 ). The Supreme Court's determination that the challenges were not pretextual was supported by the record, which included its assessment of the prosecutor's credibility, which is entitled to great deference on appeal (see People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 ; People v. Norris, 98 A.D.3d at 586, 949 N.Y.S.2d 472 ; People v. Samms, 83 A.D.3d 1099, 921 N.Y.S.2d 317 ; People v. Celestine, 243 A.D.2d 485, 665 N.Y.S.2d 278 ).

The defendant's remaining contention regarding the legal sufficiency of the evidence is unpreserved for appellate review and, in any event, without merit.

RIVERA, J.P., AUSTIN, ROMAN and HINDS–RADIX, JJ., concur.