Opinion
1998-10180
Argued February 9, 2001.
July 8, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered October 22, 1998, convicting him of criminal sale of a controlled substance in the third degree and criminal facilitation in the fourth degree, upon a jury verdict, and imposing sentence. By decision and order of this court, dated April 9, 2001, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Queens County, to hear and report on the prosecutor's exercise of a peremptory challenge against a potential black juror (People v. Hymes, 282 A.D.2d 546). The Supreme Court has filed its report.
Andrew C. Fine, New York, N.Y. (John Schoeffel of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Vered Adoni of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN, ROBERT W. SCHMIDT, JJ.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied his Batson challenge (see Batson v. Kentucky, 476 U.S. 79). The prosecutor advanced sufficient race-neutral reasons for exercising a peremptory challenge against the subject juror, and the burden then shifted to the defendant to prove that the peremptory challenge was used in a racially-discriminatory fashion (see People v. Payne, 88 N.Y.2d 172). The defendant failed to satisfy his burden of proving that the explanations given by the prosecutor were pretextual (see People v. Payne, supra; see generally Hernandez v. New York, 500 U.S. 352, 364-365).
The defendant further contends that reversal is warranted because of improper comments made by the prosecutor during the opening statement and summation. Although some of the comments were improper, in view of the overwhelming evidence of the defendant's guilt, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230).
SANTUCCI, J.P., FLORIO, O'BRIEN and SCHMIDT, JJ., concur.