People v. Nunez

229 A.D.2d 598, 646 N.Y.S.2d 38, 1996 N.Y. App. Div. LEXIS 8205

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered February 25,1994, convicting him of criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was deprived of a fair trial on the ground that the prosecutor exercised his peremptory challenges in a racially discriminatory manner. However, the defendant failed to preserve for appellate review his Batson claim with respect to previously excluded jurors since he did not raise the issue at trial (see, People v Smith, 81 NY2d 875, 876; People v Thomas, 210 AD 2d 515). In any event, the defendant’s bare assertions that the prosecutor challenged a disproportionate number of African-Americans is "insufficient, without more, to create an inference establishing a prima facie case * * * of discriminatory jury selection” (People v Jenkins, 84 NY2d 1001, 1003; People v Childress, 81 NY2d 263, 266).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it is legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see, People v Dillon, 207 AD2d 793; People v Okehoffurum, 201 AD2d 508). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s remaining contention is without merit. Mangano, P. J., Rosenblatt, Pizzuto and Hart, JJ., concur.