Opinion
2001-06484
Argued June 17, 2002
August 19, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered July 9, 2001, convicting him of sexual abuse in the first degree (two counts) and harassment in the second degree, upon a jury verdict, and imposing sentence.
Malvina Nathanson, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Traci R. Wilkerson of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court correctly denied his application challenging the prosecutor's use of a peremptory challenge against a prospective juror of Indian heritage (see Batson v. Kentucky, 476 U.S. 79). The prosecutor's use of one challenge against the single person of Indian heritage on the venire, without more, did not establish a prima facie case of purposeful discrimination (see People v. Taylor, 288 A.D.2d 331; People v. Franklin, 287 A.D.2d 649; People v. Hinton, 285 A.D.2d 476). Therefore, the Supreme Court properly denied the application without the need for the prosecutor to provide a nondiscriminatory explanation for the peremptory challenge.
The Supreme Court was likewise correct in admitting into evidence, as an excited utterance, the audiotape recording of the complainant's 911 telephone call to the police (see People v. Williams, 244 A.D.2d 587, 588). The complainant made this call from a nearby business, a short time after she fled the defendant's home, where the attack occurred (see People v. Nelson, 266 A.D.2d 725, 726; People v. Armistead, 178 A.D.2d 607, 608-609). The complainant was still distraught and acting under the influence of the attack, and thus lacked the reflective capacity for fabrication (see People v. Cotto, 92 N.Y.2d 68, 78-79; People v. Colon, 187 A.D.2d 445).
The defendant's remaining contentions are without merit.
FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.