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DEFENSE PEREMPTORY CHALLENGES TO WHITE JURORS NOT SUPPORTED BY RACE-NEUTRAL REASONS; THE ALLEGED ERROR IN INSTRUCTING THE JURY ON THE JUSTIFICATION DEFENSE WAS NOT PRESERVED (SECOND DEPT).

The Second Department determined defense peremptory challenges to prospective white jurors were not justified on race-neutral grounds and the alleged error in instructing the jury on the justification defense was not preserved:

The defendant contends that the Supreme Court erred in disallowing his peremptory challenges to two prospective white jurors because he provided sufficient race-neutral explanations for challenging them … . However, defense counsel’s proffered explanations for challenging the two jurors “amounted, essentially, to no reason at all” … . Thus, we agree with the court’s determination that the proffered explanations were pretextual and with the court’s disallowal of the defendant’s peremptory challenges. Moreover, the court did not act improperly by, sua sponte, directing the defendant’s counsel to provide race-neutral explanations for the peremptory challenges … .

The defendant contends that the Supreme Court’s instruction to the jury regarding the defense of justification was erroneous because the court included an instruction regarding the use of physical force to resist arrest. This contention is without merit. The justification charge, taken as a whole, correctly instructed the jury as to the defense of justification, and was a correct statement of the applicable law (see CPL 300.10[2] … ). The defendant also contends that the justification instruction was erroneous because the court did not instruct the jurors that, if they found the defendant not guilty of charges of attempted murder in the first degree based on the defense of justification, they were not to consider the lesser counts of aggravated assault upon a police officer and attempted aggravated assault upon a police officer. The defendant failed to preserve this contention for appellate review, and we decline to review this issue in the exercise of our interest of justice jurisdiction … . People v Foxworth, 2019 NY Slip Op 07790, Second Dept 10-30-19

 

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