Opinion
September 27, 2001.
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered February 11, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.
Mary C. Farrington, for respondent.
Lisa Lewis, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Ellerin, Saxe, Buckley, JJ.
The record clearly establishes that the basis for the court's denial of defendant's application made pursuant to Batson v. Kentucky ( 476 U.S. 79) was defendant's failure to make a prima facie showing of racial discrimination. After the court made a finding that no prima facie case had been established, the prosecutor nevertheless volunteered race-neutral explanations for the challenges at issue and the court found them to be non-pretextual. However, the court subsequently reiterated that the basis of its ruling was the lack of a prima facie case of discrimination. Accordingly, that issue is not moot (see, People v. Ocasio, 253 A.D.2d 720, lv denied 92 N.Y.2d 1036), and we find that the record supports the court's determination (see, People v. Jenkins, 84 N.Y.2d 1001; People v. Childress, 81 N.Y.2d 263, 267). In any event, we find that the explanations proffered by the prosecution concerning the subject jurors' employment and demeanor were not pretextual (see, People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.