Opinion
February 19, 1991
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contentions that the photo array and pretrial lineup procedure were unduly suggestive. Our review of the photo array and a photograph of the lineup reveals that the participants were sufficiently similar in appearance to the defendant so that no characteristic would influence the viewer toward choosing the defendant (see, People v Bullard, 146 A.D.2d 582; People v Mattocks, 133 A.D.2d 89; People v Emmons, 123 A.D.2d 475; People v Shea, 54 A.D.2d 722). The record further establishes that none of the other procedures used in connection with the identification of the defendant were improper.
The defendant's contention that his constitutional right to an impartial jury drawn from a fair cross section of the community was violated is without merit. Assuming arguendo that the defendant satisfied the first two requirements necessary to establish a prima facie violation of the fair cross-section requirement, i.e., that blacks constituted a "distinctive" group in the Nassau County community and that their representation on the venire was not fair and reasonable in relation to their numbers in the community (see, Duren v Missouri, 439 U.S. 357, 364; People v Guzman, 60 N.Y.2d 403, 410, cert denied 466 U.S. 951), he nevertheless failed to demonstrate that the underrepresentation was attributable to a systematic exclusion of blacks, that is, that the underrepresentation was inherent in the jury selection process utilized (see, People v Guzman, supra, at 410; People v Betancourt, 153 A.D.2d 750, 753). Nor is there any merit to the defendant's claim that the prosecutor improperly used his peremptory challenges to exclude a single black juror in a racially discriminatory manner. We find that the defendant did not make out a prima facie case of purposeful discrimination. But, even if he had, it was sufficiently rebutted when the prosecutor articulated a race-neutral explanation for the exclusion of the juror, i.e., that she was a potential witness in another proceeding and that she had taken a course in business law (see, Batson v Kentucky, 476 U.S. 79; People v Scott, 70 N.Y.2d 420; People v Cartier, 149 A.D.2d 524, cert denied ___ US ___, 110 S Ct 1927; People v Howard, 143 A.D.2d 943; People v Bridget, 139 A.D.2d 587).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Finally, the defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Kooper, Harwood and Balletta, JJ., concur.