730 N.Y.S.2d 436 | N.Y. App. Div. | 2001
—Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered February 11, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of AVz to 9 years, unanimously affirmed.
The record clearly establishes that the basis for the court’s denial of defendant’s application made pursuant to Batson v Kentucky (476 US 79) was defendant’s failure to make a prima facie showing of racial discrimination. After the court made a finding that no prima facie case had been established, the prosecutor nevertheless volunteered race-neutral explanations for the challenges at issue and the court found them to be nonpretextual. However, the court subsequently reiterated that the basis of its ruling was the lack of a prima facie case of discrimination. Accordingly, that issue is not moot (see, People v Ocasio, 253 AD2d 720, lv denied 92 NY2d 1036), and we find that the record supports the court’s determination (see, People v Jenkins, 84 NY2d 1001; People v Childress, 81 NY2d 263, 267). In any event, we find that the explanations proffered by the prosecution concerning the subject jurors’ employment and demeanor were not pretextual (see, People v Hernandez, 75 NY2d 350, affd 500 US 352). Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Saxe and Buckley, JJ.
