743 N.Y.S.2d 78 | N.Y. App. Div. | 2002
—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 22, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years, unanimously affirmed.
Defendant’s application pursuant to Batson v Kentucky (476 US 79) was properly denied. Defendant failed to meet his burden of establishing that the prosecutor’s facially race-neutral reasons for peremptorily challenging a prospective juror were pretextual (see, People v Payne, 88 NY2d 172, 181), and the record supports the court’s implicit finding of nonpretextuality. The trial court was in the best position to assess the prosecutor’s credibility (see, People v Pena, 251 AD2d 26, 34-35, lv denied 92 NY2d 929) and the panelist’s demeanor (see, People v Barnes, 261 AD2d 281, lv denied 93 NY2d 1014). The prosecutor’s principal reason for challenging the juror was that she expressed hostility to police undercover operations, and the record fails to support defendant’s claim that the prosecutor disparately treated a similarly situated panelist on the basis of race. There were significant differences in the responses of the panelists and their demeanor.
The court properly denied defendant’s request for a missing witness charge. The People made a sufficient showing that the officer in question was unavailable, for purposes of a missing witness charge, because he was recovering from surgery, had not worked for over a month, and was not expected to return to work for several months (see, People v Maldonado, 271 AD2d 328, 329, lv denied 95 NY2d 867; People v Shaw, 160 AD2d 1032; People v Aufiero, 139 AD2d 656, 657). Concur—Williams, P.J., Tom, Mazzarelli, Ellerin and Marlow, JJ.
