Opinion
November 17, 1992
Appeal from the Supreme Court, Bronx County (Irene Duffy, J.).
Defendant was arrested after having made a drug sale to an undercover officer. The officer transmitted a description of defendant, who was apprehended 15 minutes later. The undercover officer confirmed defendant's identification.
Defendant's pretrial challenge to the prosecutor's exercise of peremptory challenges, pursuant to Batson v Kentucky ( 476 U.S. 79), and People v Scott ( 70 N.Y.2d 420), is without merit. We find no basis to disturb the conclusion of the trial court, after hearing the prosecutor's explanation as to the exercise of each of the challenges, that racially neutral reasons underlay the peremptory discharge of the subject jurors.
Error by the court, if any, in the instruction on credibility, to wit: that the jury should determine "who's telling the truth?", was harmless when the court's charge is considered as a whole, and in view of the overwhelming evidence of defendant's guilt (see, People v Flecha, 161 A.D.2d 116, lv denied 76 N.Y.2d 856).
Nor has defendant demonstrated that he was denied meaningful representation at trial (see, People v Baldi, 54 N.Y.2d 137, 147). The Sandoval ruling had permitted the People to inquire only into the fact that defendant had misdemeanor convictions in 1988 and 1989. His counsel, on direct examination, in seeking, and doubtless expecting, defendant's denial as to whether he had ever sold drugs in the past, elicited the response "In 1988 and 1989." Defendant's counsel was obliged to expand beyond the Sandoval ruling to elicit the fact that these convictions were for possession only, and not sale.
We have examined defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Asch, JJ.