Opinion
2753.
Decided January 29, 2004.
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered February 4, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Eleanor J. Ostrow, for Respondent.
Peter Theis, for Defendant-Appellant.
Before: Nardelli, J.P., Andrias, Sullivan, Ellerin, Gonzalez, JJ.
The court properly denied defendant's application pursuant to Batson v. Kentucky ( 476 U.S. 79). Defendant failed to make a prima facie showing of racial discrimination by the prosecution in the exercise of its peremptory challenges. Defendant's numerical argument was unpersuasive, and he failed to show disparate treatment of similarly situated panelists or other relevant circumstances sufficient to raise an inference of a discriminatory purpose ( see People v. Brown, 97 N.Y.2d 500, 507-508).
Defendant established a sufficient foundation for a missing witness instruction regarding a nontestifying police officer, as well as for the introduction, as a business record, of a police report containing the author's personal observations. However, we find both errors to be harmless in light of the overwhelming evidence of defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.