| People v Harris |
| 2008 NY Slip Op 08269 [55 AD3d 503] |
| October 30, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LafateHarris, Appellant. The People of the State of New York, Respondent, v Todd Smith,Appellant. |
—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger ofcounsel), for Todd Smith, appellant. Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgments, Supreme Court, New York County (Richard D. Carruthers, J.), renderedFebruary 16, 2007, convicting defendants, after a jury trial, of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the third andfifth degrees, and sentencing each of them, as a second felony drug offender, to an aggregate termof six years, unanimously affirmed.
The court properly denied defendants' applications made pursuant to Batson vKentucky (476 US 79 [1986]). Regardless of whether hybrid groups are cognizable underBatson, defendants did not produce "evidence sufficient to permit the trial judge to drawan inference that discrimination ha[d] occurred" (Johnson v California, 545 US 162, 170[2005]), and thus failed to make a prima facie showing that the prosecutor discriminated againstwhite women in his exercise of peremptory challenges. The Batson claim only applied tothe first of three rounds of jury selection, and the numbers of white women challenged by theprosecutor were too small to be significant (see People v Johnson, 37 AD3d 344 [2007],lv denied 8 NY3d 986 [2007]; compare People v Rosado, 45 AD3d 508 [2007]).Furthermore, there were no other facts or circumstances suggesting intentional discrimination.
The court properly denied defendants' mistrial motions, made on the ground that the [*2]prosecutor's summation contained allegedly improper references todrug dealers or the business of selling drugs. These remarks drew fair inferences from theevidence, as well as being responsive to defense efforts to show that defendants' behavior duringthis incident was not typical of drug dealers (see People v Overlee, 236 AD2d 133[1997], lv denied 91 NY2d 976 [1998]). Defendants' other summation claims areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we find no basis for reversal (see id.; People v D'Alessandro, 184 AD2d 114,118-119 [1992], lv denied 81 NY2d 884 [1993]).
The evidence established that a 20-dollar bill, which was part of the prerecorded buy money,was recovered from defendant Smith rather than from defendant Harris or anyone else, and thereis no merit to Smith's claim to the contrary. Even though the officer who arrested Smith testifiedhe recovered $20 from Smith's pocket, without specifying that it was a 20-dollar bill, thetestimony of the officer who arrested Harris made it clear that this bill could only have comefrom Smith. Smith's claim that his conviction was against the weight of the evidence is likewisewithout merit (see People v Danielson, 9 NY3d 342, 348-349 [2007]).
We perceive no basis for reducing the sentences. Concur—Tom, J.P., Nardelli,Sweeny, McGuire and DeGrasse, JJ.