People v. Davis

4 A.D.3d 533, 771 N.Y.S.2d 712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2004
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered September 19, 2002, convicting him of robbeiy in the first degree, robbery in the second degree, criminal possession of a weapon in the third degree, assault in the second degree (two counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim pursuant to Batson v Kentucky (476 US 79 [1986]) premised on the prosecutor’s use of peremptory challenges to strike a black prospective juror is not preserved for appellate review (see People v Allen, 86 NY2d 101, 111 [1995]; People v Hernandez, 266 AD2d 311 [1999]). In any event, the absence of a complete record of the voir dire precludes any finding that the defendant established a prima facie case of purposeful discrimination (see People v Hernandez, supra; People v Williams, 260 AD2d 651 [1999]; People v Campanella, 176 AD2d 813 [1991]; People v Morales, 126 AD2d 836 [1987]).

Further, the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction. Reversal is only required if the defendant is prejudiced by the absence of a stenographic record. Under the circumstances of this case, reversal is not warranted as the defendant failed to demonstrate that he was prejudiced by the absence of the minutes from a bench conference (see People v Harrison, 85 NY2d 794, 796 [1995]; People v Glass, 43 NY2d 283, 286 [1977]; People v Eddins, 247 AD2d 548 [1998]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Santucci, J.E, Florio, Schmidt and Mastro, JJ., concur.