People v. Moore , 998 N.Y.S.2d 359 ( 2014 )

People v Moore (2014 NY Slip Op 08583)

People v Moore

2014 NY Slip Op 08583

Decided on December 9, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 9, 2014
Mazzarelli, J.P., Renwick, Andrias, Saxe, Kapnick, JJ.

13732 2703/10

[*1] The People of the State of New York, Respondent,

v

Erika Moore, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Katia Asche of counsel), for appellant.

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

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.,) rendered April 15, 2011, as amended December 14, 2011, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing her, as a second felony drug offender previously convicted of a violent felony, to an aggregate term of 7½ years, unanimously affirmed.

Defendant's claims pursuant to Batson v Kentucky (476 U.S. 79 [1986]) are unpreserved, and we decline to review them in the interest of justice. In the first round of jury selection, defense counsel commented on the prosecutor's pattern of peremptory challenges. However, upon careful inquiry by the court, defense counsel made it clear that he was not making a Batson application, or, to the extent he could be viewed as doing so, he was withdrawing the application. In the second round, defense counsel made a Batson application generally claiming a prima facie case of discrimination, but addressed only to a particular panelist whom the People had unsuccessfully challenged for cause, and then challenged peremptorily. When the court ruled that the People's reasons for their unsuccessful cause challenge clearly constituted nonpretextual reasons for a peremptory challenge as well, defense counsel remained silent, thereby failing to preserve the issue (see People v Allen, 86 NY2d 101, 111 [1995]). Moreover, he never alerted the court to his present claim that the court should have also directed the People to provide explanations for the peremptory challenges they had exercised on the first round, and that issue is likewise unpreserved (see People v James, 99 NY2d 264, 271 [2002]). As an alternative holding, we reject these claims on their merits. The court's ruling as to the panelist from the second round was supported by the record, and with regard to the first round, defendant did not properly develop the record or produce evidence sufficient to permit the court to draw an inference of unlawful discrimination.

The court properly exercised its discretion in receiving, with suitable limiting instructions, evidence of a contemporaneous uncharged sale to complete the narrative of events leading up to defendant's arrest, to explain why the observing officer targeted defendant and focused on her continuing activity, and to establish defendant's intent to sell the additional drugs recovered by the police (see e.g. People v Toppy, 68 AD3d 635 [1st Dept 2009], lv denied 14 [*2]NY3d 806 [2010]; People v Flores, 26 AD3d 196 [1st Dept 2006], lv denied 7 NY3d 756 [2006]; People v Pressley, 216 AD2d 202 [1st Dept 1995], lv denied 86 NY2d 800 [1995]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 9, 2014

CLERK