Opinion
No. 2004-08821, (Ind. No. 2742N-03).
March 6, 2007.
Appeal by the defendant from a judgment of the County Court, Nassau County (Weinberg, J.), rendered October 8, 2004, convicting her of assault in the second degree and resisting arrest, upon a jury verdict, and imposing sentence.
Martin Geduldig, Hicksville, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleisher and Cristin N. Connell of counsel), for respondent.
Before: Mastro, J.P., Dillon, Carni and Balkin, JJ.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, she was provided with meaningful representation of counsel ( see People v Henry, 95 NY2d 563; People v Benevento, 91 NY2d 708). The defense counsel, an experienced attorney, was vigorous in his representation of the defendant. He pursued both a justification defense and a battered woman's defense. The defense counsel's choice of expert, a tactical decision, did not constitute ineffective assistance. Furthermore, the County Court providently exercised its discretion in denying the defendant's application to adjourn the trial ( see People v Spears, 64 NY2d 698; People v Coward, 292 AD2d 630).
The defendant's Batson challenge ( see Batson v Kentucky, 476 US 79) was properly denied, as she failed to make the requisite prima facie showing of discrimination. In order to establish a prima facie case of discrimination in the selection of jurors under Batson, a defendant asserting a claim must show that the exercise of peremptory challenges by the prosecution removes one or more members of a cognizable racial group from the venire and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race ( see People v Brown, 97 NY2d 500, 507). The mere fact that the prosecutor exercised 5 out of 12 peremptory challenges against Hispanic or African-American women was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination ( see People v Brown, supra at 507; People v Fryar, 29 AD3d 919, 920; People v Stanley, 292 AD2d 472, 473; People v Harrison, 272 AD2d 554; People v Phillips, 259 AD2d 565). Since the defendant did not establish the requisite pattern of discrimination, the burden never shifted to the prosecutor to come forward with a race-neutral explanation for her peremptory challenges ( see People v Brown, 97 NY2d 500, 507). In several instances where the prosecutor did provide an explanation, although not required, the reasons proffered were race-neutral.
The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.