Opinion
December 27, 1994
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment under Indictment No. 914/92 is affirmed; and it is further,
Ordered that the judgment under Indictment No. 6032/91 is modified, on the law, by reversing the conviction for unlawful imprisonment in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant contends that the prosecution failed to establish a prima facie case of purposeful discrimination in the jury selection by defense counsel, and that the Supreme Court thus erred in conducting a reverse Batson inquiry (see, Batson v Kentucky, 476 U.S. 79). We note that since defense counsel protested the court's ruling upon the ground that no pattern of discrimination had been demonstrated, the issue of whether the prosecution made a prima facie showing that the defense exercised peremptory challenges based on race is preserved for appellate review (see, People v Stiff, 206 A.D.2d 235; cf., People v Jones, 204 A.D.2d 485). Contrary to the defendant's assertion, however, the record supports a conclusion that a prima facie case of discrimination had been established. It is well settled that "[t]here are no fixed rules for determining what evidence will give rise to an inference sufficient to establish a prima facie case" (People v Bolling, 79 N.Y.2d 317, 323-324). Thus, for example, while "[a] pattern of strikes or questions and statements made during the voir dire may be sufficient in a particular case" (People v Childress, 81 N.Y.2d 263, 266-267), this element may also be established by "a showing that members of the cognizable group were excluded while others with the same relevant characteristics were not" (People v Childress, supra, at 267; People v Bolling, supra). Here, the evidence that all of the peremptory challenges exercised by the defense during the first round of voir dire were used to exclude white male jurors, and that the defense failed to challenge potential black jurors with similar characteristics, is sufficient to raise an inference that defense counsel used his peremptory challenges to exclude potential jurors because of their race (see, People v Hawthorne, 80 N.Y.2d 873; People v Barnes, 198 A.D.2d 289). Accordingly, the court did not err in requiring the defense to proffer race-neutral reasons for its exercise of the challenges.
Viewing the evidence adduced at trial under Indictment No. 6032/91 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 of burglary in the first degree and grand larceny in the fourth degree (see, Penal Law § 140.30; § 155.30 [5]). 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).
As the People correctly concede, however, the defendant's conviction under Indictment No. 6032/91 for unlawful imprisonment in the second degree should be dismissed because it merged with the conviction of burglary in the first degree (see, People v Black, 189 A.D.2d 883; People v Butler, 175 A.D.2d 252).
The defendant's sentences were neither unduly harsh nor excessive (see, People v Delgado, 80 N.Y.2d 780; People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find that they are without merit. Thompson, J.P., Sullivan, Friedmann and Krausman, JJ., concur.