Opinion
2000-05066
Submitted September 5, 2002.
September 24, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered May 5, 2000, convicting him of criminal possession of a controlled substance in the fourth degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Naro, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Charles Lavine, Forest Hills, N.Y., for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano of counsel; Jennifer Hagan on the brief), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.
ORDERED that the judgment is affirmed.
The branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied. The defendant did not sustain his burden of showing that he had a reasonable expectation of privacy in the apartment where he was apprehended. Therefore, he lacked standing to challenge the validity of the search (see People v. Rodriguez, 69 N.Y.2d 159; People v. Abreu, 239 A.D.2d 424).
The Supreme Court properly determined that the explanation proffered by the defense counsel when the prosecution made a reverse-Batson-Kern challenge (see Batson v. Kentucky, 476 U.S. 79; People v. Kern, 75 N.Y.2d 638) was a mere pretext offered in an attempt to conceal a racially-discriminatory intent based on the defense counsel's less-than-uniform application of the "prior jury service" factor. Accordingly, the two challenged jurors were properly seated.
Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.
FLORIO, J.P., S. MILLER, CRANE and MASTRO, JJ., concur.