Opinion
September 21, 1995
Appeal from the Supreme Court, New York County (Bernard Fried, J.).
Although defendant does not contest the trial court's ruling that the prosecutor established a prima facie case of discrimination in the exercise of defense challenges, he contends that he then met his burden of coming forward with legitimate, racially neutral explanations for those challenges ( Georgia v McCollum, 505 U.S. 42; Batson v Kentucky, 476 U.S. 79). However, viewing the record in its entirety, the court did not erroneously apply the Batson doctrine in determining that counsel's explanations were pretextual especially in light of counsel's virtual concession of racial motivation for the strikes. Great deference is to be accorded the trial court's determination ( Batson v Kentucky, supra, at 98; People v Hernandez, 75 N.Y.2d 350, 356-357, affd 500 U.S. 352). The record also fails to support defendant's contention that he was denied his right to be present at the Batson hearing. Moreover, since the rule announced in People v Sloan ( 79 N.Y.2d 386) and People v Antommarchi ( 80 N.Y.2d 247) is only to be applied retroactively ( People v Sprowal, 84 N.Y.2d 113; People v Mitchell, 80 N.Y.2d 519), such ruling is not applicable to the instant 1990 proceeding.
Assuming arguendo the statements of a witness who did not testify at trial constituted exculpatory material, defendant was not deprived of a fair trial by the People's failure to disclose them until the close of evidence. Brady v Maryland ( 373 U.S. 83) does not require that disclosure be made at any particular point in the proceedings, but only that it be made in time for the defense to use it effectively ( People v White, 178 A.D.2d 674, 675, lv denied 79 N.Y.2d 1009). Since defendant failed to move to reopen the case, to question the officer who took the statements from the witness, even though the officer was recalled by the prosecution, and did not request an adjournment to call the witness whose role he was aware of from the beginning, defendant's contention is unpreserved as a matter of law ( see, People v Medina, 53 N.Y.2d 951; People v White, supra) and we decline to review it in the interest of justice. Although the statements constituted Rosario material ( People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866), by failing to object to the late disclosure on this ground and by failing to request a remedy for the violation, defendant failed to preserve his contention for review as a matter of law (CPL 470.05; People v Rogelio, 79 N.Y.2d 843) and we decline to review in the interest of justice.
Defendant's contention that the People failed to prove his guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt, based on his assertion that they failed to prove that he knew the gun in his possession was defaced, is unpreserved ( People v Gray, 86 N.Y.2d 10), and without merit. It was entirely reasonable, based on the testimony adduced at trial, for the jury to have inferred that he knew that the gun which he possessed was defaced ( see, People v Reisman, 29 N.Y.2d 278, 285-286, cert denied 405 U.S. 1041).
Defendant's contention that he was deprived of a fair trial by the prosecutor's improper use of his post-arrest silence is largely unpreserved and, in certain instances, without merit. Although counsel properly objected to certain comments and questions and it would have been the better practice for the prosecutor to have avoided this line of questioning and comments, reversal is not warranted since there was no reasonable possibility that such error contributed to defendant's conviction in light of the overwhelming evidence of guilt ( People v Basora, 75 N.Y.2d 992, 994).
The court properly admitted that portion of the 911 tapes in which the victims described their assailant ( People v Perkins, 213 A.D.2d 358, 359).
We have considered defendant's remaining contentions and find they do not warrant any modification of the judgment.
Concur — Wallach, J.P., Kupferman, Ross, Nardelli and Tom, JJ.