Opinion
2001-07190
Argued September 29, 2003.
October 20, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McKay, J.), rendered July 24, 2001, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Noreen Healey, and Anjanette Cabrera of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant challenges the reasons offered by the prosecutor for using a peremptory challenge against two black jurors. However, contrary to the defendant's contention, the trial court properly determined that the reasons offered by the prosecutor were not pretextual. The prosecutor proffered race-neutral reasons for exercising a peremptory challenge against the prospective jurors, and the burden then shifted to the defendant to prove that the peremptory challenge was used in a racially-discriminatory manner ( see People v. Payne, 88 N.Y.2d 172, 181; People v. Allen, 86 N.Y.2d 101, 104). The defendant failed to satisfy his burden ( see People v. Payne, supra; People v. Allen, supra; see also People v. Turner, 294 A.D.2d 192; People v. Camarena, 289 A.D.2d 7; People v. Jones, 284 A.D.2d 46, affd 99 N.Y.2d 264).
The defendant's remaining contentions either are unpreserved for appellate review, without merit, or harmless.
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and COZIER, JJ., concur.