Opinion
February 3, 1995
Appeal from the Erie County Court, Drury, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree and burglary in the second degree. The jury acquitted defendant of two counts of rape in the first degree, sodomy in the first degree and attempted sodomy in the first degree. We reject the contention of defendant that the verdict is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
Additionally, we reject the contention of defendant that the prosecutor used peremptory challenges to exclude African-American jurors. Defendant failed to establish a prima facie case of unlawful discrimination by the prosecutor's use of peremptory challenges to strike two of four African-Americans from the jury (see, People v. Childress, 81 N.Y.2d 263, 266-267; see also, Batson v. Kentucky, 476 U.S. 79). Moreover, the prosecutor came forward with race-neutral explanations for exercising those challenges (see, Batson v. Kentucky, supra, at 97-98).
There is no merit to the contention of defendant that reversal is required because he was denied his right to be present at the Sandoval hearing (see, People v. Dokes, 79 N.Y.2d 656). The record unmistakably establishes that defendant was present at a Sandoval hearing, at which the court made its Sandoval ruling (see, People v. Thomas, 206 A.D.2d 927; People v. Moore, 202 A.D.2d 1046, lv denied 84 N.Y.2d 830; People v. Lanaux, 197 A.D.2d 908, lv denied 82 N.Y.2d 926, 83 N.Y.2d 873; People v. Russell, 191 A.D.2d 1001, lv denied 81 N.Y.2d 1019).
We have reviewed the remaining issues advanced by defendant, including those raised in defendant's supplemental pro se brief, and we conclude that they are lacking in merit.