THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RICHARD RIZZO, Appellant.
Appellate Division of the Supreme Court of New York, Second Department
October 8, 2004
832 NYS2d 586
Ordered that the judgment is affirmed.
Contrary to the defendant‘s contention, she was provided with meaningful representation of counsel (see People v Henry, 95 NY2d 563 [2000]; People v Benevento, 91 NY2d 708 [1998]). The defense counsel, an experienced attorney, was vigorous in his representation of the defendant. He pursued both a justification defense and a battered woman‘s defense. The defense counsel‘s choice of expert, a tactical decision, did not constitute ineffective assistance. Furthermore, the County Court providently exercised its discretion in denying the defendant‘s application to adjourn the trial (see People v Spears, 64 NY2d 698 [1984]; People v Coward, 292 AD2d 630 [2002]).
The defendant‘s Batson challenge (see Batson v Kentucky, 476 US 79 [1986]) was properly denied, as she failed to make the requisite prima facie showing of discrimination. In order to establish a prima facie case of discrimination in the selection of jurors under Batson, a defendant asserting a claim must show that the exercise of peremptory challenges by the prosecution removes one or more members of a cognizable racial group from the venire and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race (see People v Brown, 97 NY2d 500, 507 [2002]). The mere fact that the prosecutor exercised 5 out of 12 peremptory challenges against Hispanic or African-American women was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see People v Brown, supra at 507; People v Fryar, 29 AD3d 919, 920 [2006]; People v Stanley, 292 AD2d 472, 473 [2002]; People v Harrison, 272 AD2d 554 [2000]; People v Phillips, 259 AD2d 565 [1999]). Since the defendant did not establish the requisite pattern of discrimination, the burden never shifted to the prosecutor to come forward with a race-neutral explanation for her peremptory challenges (see People v Brown, 97 NY2d 500, 507 [2002]). In several instances where the prosecutor did provide an explanation, although not required, the reasons proffered were race-neutral.
The defendant‘s remaining contentions are unpreserved for appellate review and, in any event, are without merit.
Mastro, J.P., Dillon, Carni and Balkin, JJ., concur.