People v. Cook

68 A.D.3d 511, 891 N.Y.2d 341

Opinion

The court properly denied defendant’s application made pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant did not produce “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v California, 545 US 162, 170 [2005]), and thus failed to make a prima facie showing of gender discrimination in the People’s exercise of their peremptory challenges. Defendant does not allege that the People excluded a disproportionate number of men from the panel, but instead alleges a disparity between the rate at which the People challenged male panelists and the percentage of men in the available panel (see Jones v West, 555 F3d 90, [2d Cir 2009]). However, we conclude that, given the number of panelists involved, the rate of challenges to men was not so “significantly higher than the [male] percentage of the venire” as to “support a statistical inference of discrimination” (United States v Alvarado, 923 F2d 253, 255 [2d Cir 1991]; cf. Castaneda v Partida, 430 US 482, 496 n 17 [1977]). The record does not support defendant’s additional argument that characteristics of the challenged panelists also give rise to an inference of discrimination. Concur — Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ.