PEOPLE v. RHODES

The court properly denied defendant's application made pursuant to Batson v. Kentucky ( 476 U.S. 79). After the prosecution explained its reasons for the challenges at issue, defendant failed to preserve his current arguments concerning the alleged pretextuality of these explanations ( see People v. Smocum, 99 N.Y.2d 418, 423; People v. Allen, 86 N.Y.2d 101, 111), and we decline to review them in the interest of justice. Were we to review defendant's claims, we would find that the record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual. This finding is entitled to great deference ( see People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352). The prosecutor raised legitimate concerns about the attentiveness or level of engagement of these panelists.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.