People v. Molina

187 A.D.2d 356, 590 N.Y.S.2d 76, 1992 N.Y. App. Div. LEXIS 13055

Opinion

Judgment, Supreme Court, Bronx County (Irene Duffy, J.), rendered May 2, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and which sentenced him to a term of from 2 to 6 years imprisonment, unanimously affirmed.

Defendant was arrested after having made a drug sale to an undercover officer. The officer transmitted a description of defendant, who was apprehended 15 minutes later. The undercover officer confirmed defendant’s identification.

Defendant’s pretrial challenge to the prosecutor’s exercise of peremptory challenges, pursuant to Batson v Kentucky (476 US 79), and People v Scott (70 NY2d 420), is without merit. We find no basis to disturb the conclusion of the trial court, after hearing the prosecutor’s explanation as to the exercise of each of the challenges, that racially neutral reasons underlay the peremptory discharge of the subject jurors.

Error by the court, if any, in the instruction on credibility, to wit: that the jury should determine "who’s telling the truth?”, was harmless when the court’s charge is considered as a whole, and in view of the overwhelming evidence of defendant’s guilt (see, People v Flecha, 161 AD2d 116, lv denied 76 NY2d 856).

Nor has defendant demonstrated that he was denied meaningful representation at trial (see, People v Baldi, 54 NY2d 137, 147). The Sandoval ruling had permitted the People to inquire only into the fact that defendant had misdemeanor convictions in 1988 and 1989. His counsel, on direct examination, in seeking, and doubtless expecting, defendant’s denial as to whether he had ever sold drugs in the past, elicited the response "In 1988 and 1989.” Defendant’s counsel was obliged to expand beyond the Sandoval ruling to elicit the fact that these convictions were for possession only, and not sale.

We have examined defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Asch, JJ.