People v. Jenkins

199 A.D.2d 417, 605 N.Y.S.2d 118

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1993
• Status: Published

Opinion

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered April 22, 1991, convicting him of criminal sale of a controlled substance in the third degree under Indictment No. 12515/90, upon a jury verdict, and (2) an amended judgment of the same court, also rendered April 22, 1991, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree under Indictment No. 4687/88.

Ordered that the judgment and the amended judgment are affirmed.

A defendant asserting a claim of unlawful discrimination under Batson v Kentucky (476 US 79), bears the initial burden of demonstrating, inter alia, "facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race” (People v Childress, 81 NY2d 263, 266; Batson v Kentucky, supra, at 96-98; see also, People v Smith, 81 NY2d 875, 876). We find that no such demonstration was made. Although the prosecutor employed 6 of her 12 peremptory challenges against black venirepersons and 1 against an Hispanic venireperson, this pattern was insufficient to establish a pattern of discrimination against either blacks or Hispanics under the circumstances of this case (see, People v Childress, supra, at 267). No other facts are advanced by the defendant. The mere exercise of peremptory challenges here, standing alone, is insufficient to establish a "pattern of purposeful exclusion sufficient to raise an inference of discrimination” (People v Steele, 79 NY2d 317, 325; cf., People v Bennett, 186 AD2d 812 [64% of black venirepersons excluded through use of peremptory challenges]). We therefore conclude that the Batson objection was properly overruled, and note that six blacks were ultimately seated on the jury.

We have examined the defendant’s remaining contentions and find them to be without merit (see, People v Arce, 42 NY2d 179; People v Ashwal, 39 NY2d 105; People v Ayala, 165 AD2d 878; People v O’Connor, 154 AD2d 626; People v Suitte, 90 AD2d 80). O’Brien, J. P., Copertino, Pizzuto and Santucci, JJ., concur.