Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the trial court erred in denying his request to charge petit larceny as a lesser included offense of robbery in the third degree because, viewing the evidence in the light most favorable to defendant (see, People v Martin, 59 N.Y.2d 704, 705), there is no reasonable view of the evidence that could support a finding that defendant committed the lesser offense but not the greater (see, People v Glover, 57 N.Y.2d 61, 63). The victim testified that defendant "struck me down" as he grabbed her purse and "elbowed" her in the chest, causing her to fall on the sidewalk and injure her elbow. Additionally, she testified that the shoulder strap of her purse broke in the course of the incident. Consequently, contrary to defendant's contention, there was no reasonable view of the evidence which could have supported a finding that defendant committed petit larceny (see, Penal Law § 155.25), which does not contain the element of a forcible taking, but not robbery in the third degree (see, Penal Law § 160.05; People v Santiago, 48 N.Y.2d 1023; People v Johnson, 45 N.Y.2d 546).
We reject defendant's assertion that the trial court erred in denying his Batson (see, Batson v Kentucky, 476 U.S. 79) motion. We find that defendant established a prima facie case of "purposeful discrimination" when the prosecutor exercised a peremptory challenge to exclude the sole black venireperson (Batson v Kentucky, supra, at 96; see also, People v Scott, 70 N.Y.2d 420). In our view, however, the prosecutor tendered a race-neutral reason for his use of this peremptory challenge (see, People v Johnson, 138 A.D.2d 952, lv denied 72 N.Y.2d 862).
If there was any error in the court's Sandoval ruling (see, People v Sandoval, 34 N.Y.2d 371) the overwhelming evidence of defendant's guilt rendered the error harmless (see, People v Crimmins, 36 N.Y.2d 230; People v Melideo, 124 A.D.2d 1045, 1046, lv denied 69 N.Y.2d 748).
We further conclude that the verdict is not against the weight of the evidence. We have examined all of the evidence as required by People v Bleakley ( 69 N.Y.2d 490, 495) and we are persuaded that the jury gave the evidence the weight it should be accorded.
Finally, we conclude that, on this record, the trial court properly exercised its discretion when it declined to grant defendant youthful offender status (see, CPL 720.20; People v Williams, 78 A.D.2d 642).