People v. Frederick

Appellate Division of the Supreme Court of New York

People v. Frederick

30 A.D.3d 346, 817 N.Y.S.2d 287

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 2006

StatusPublished

This text of 30 A.D.3d 346 (People v. Frederick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Frederick, 30 A.D.3d 346, 817 N.Y.S.2d 287 (N.Y. Ct. App. 2006).

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Opinion

[347]*347Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed, without costs.

The court properly denied defendant’s application made pursuant to Batson v Kentucky (476 US 79 [1986]). The record supports the court’s determination that defendant did not make the necessary prima facie showing (see People v Brown, 97 NY2d 500, 507-508 [2002]). Even assuming that a panelist whose ethnicity was in dispute was, in fact, African-American, we conclude that defendant’s statistical evidence (see Castaneda v Partida, 430 US 482, 496 n 17 [1977]) was not “sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v California, 545 US 162, —, 125 S Ct 2410, 2417 [2005]).

As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed.

We perceive no basis for reducing the sentence. Concur— Buckley, PJ., Sullivan, Williams, Catterson and McGuire, JJ.

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[347]*347Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed, without costs.

The court properly denied defendant’s application made pursuant to Batson v Kentucky (476 US 79 [1986]). The record supports the court’s determination that defendant did not make the necessary prima facie showing (see People v Brown, 97 NY2d 500, 507-508 [2002]). Even assuming that a panelist whose ethnicity was in dispute was, in fact, African-American, we conclude that defendant’s statistical evidence (see Castaneda v Partida, 430 US 482, 496 n 17 [1977]) was not “sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v California, 545 US 162, —, 125 S Ct 2410, 2417 [2005]).

As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed.

We perceive no basis for reducing the sentence. Concur— Buckley, PJ., Sullivan, Williams, Catterson and McGuire, JJ.

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30 A.D.3d 346, 817 N.Y.S.2d 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-frederick-nyappdiv-2006.

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