Opinion
2051
October 30, 2003.
Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 3, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 5½ to 11 years, unanimously affirmed.
Albert Ceva, for respondent.
Abigail Everett, for defendant-appellant.
Before: Andrias, J.P., Saxe, Williams, Marlow, Gonzalez, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification (see People v. Bleakley, 69 N.Y.2d 490). The purchasing undercover officer made a reliable identification of defendant, which was corroborated by the testimony of the "ghost" officer.
The People's reverse-Batson application (Batson v. Kentucky, 476 U.S. 79;People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824) was properly granted. The record supports the court's determination that the reasons provided by defense counsel with respect to her peremptory challenge of the panelist at issue were pretextual. Such a finding is entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352, 356-357). The panelist had expressed a reluctance to convict on the testimony of a single witness, a factor that would favor defendant.
We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223,lv denied 98 N.Y.2d 641; People v. Kulakov, 278 A.D.2d 519, lv denied 96 N.Y.2d 785).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.