| People v Hollis |
| 2009 NY Slip Op 04273 [63 AD3d 409] |
| June 2, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EricHollis, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered August5, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years,unanimously affirmed.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People vWalker, 83 NY2d 455, 458-459 [1994]). The court properly permitted the People to elicitthree theft-related convictions. Each of these convictions was probative of defendant'scredibility, and none was similar to the charge for which defendant was being tried.
Since defendant did not produce evidence sufficient to permit the court to draw an inferenceof discrimination (see Johnson v California, 545 US 162, 170 [2005]), the court properlydenied his application pursuant to Batson v Kentucky (476 US 79 [1986]). In the secondof three rounds of jury selection, the prosecutor used two peremptory challenges. Thosechallenges removed the only two African-American panelists available at that particular point injury selection. While a prima facie showing of discrimination "may be made based on theperemptory challenge of a single juror that gives rise to an inference of discrimination"(People v Smocum, 99 NY2d 418, 422 [2003]), and while the use of peremptories toexclude all or nearly all the members of a cognizable group normally raises such an inference(see e.g. People v Hawthorne, 80 NY2d 873 [1992]), the circumstances of thesecond round do not suggest discrimination, as opposed to happenstance (see People v McCloud, 50 AD3d379 [2008], lv denied 11 NY3d 738 [2008]). Furthermore, when jury selection isviewed as a whole, the record is silent as to the overall racial composition of the venire, whatshare of its overall allotment of 15 peremptory challenges the prosecutor used againstAfrican-American panelists, and what portion of such panelists in the overall venire waschallenged by the prosecutor. Moreover, defendant declined the court's offer of an opportunity torenew the application at a later juncture (see People v Johnson, 37 AD3d 344 [2007], lv denied 8NY3d 986 [2007]).[*2]
Defendant's argument concerning the court's charge isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits. Concur—Mazzarelli, J.P., Andrias, Friedman, Renwick andFreedman, JJ.