Opinion
May 28, 1998
Appeal from the Supreme Court, New York County (Marcy Kahn, J.).
The court properly followed the protocols established by Batson v. Kentucky ( 476 U.S. 79) in determining defendants claim of discriminatory exercise of peremptory challenges by the prosecutor, and the record supports the courts implicit findings ( see, People v. Owens, 235 A.D.2d 268, lv denied 90 N.Y.2d 896) that the prosecutors offered reasons for the disputed challenges were both race-neutral and nonpretextual ( see, People v. Mitchell, 216 A.D.2d 156, lv denied 86 N.Y.2d 798). Such findings are entitled to great deference on appeal ( People v. Hernandez, 75 N.Y.2d 350, 356-357, affd 500 U.S. 352) and we decline to disturb them.
Defendant's ability to present his defense was not hampered by the courts rulings in connection with cross-examination, which constituted appropriate exercises of discretion ( see, People v. Hemphill, 247 A.D.2d 339). The court provided defendant with ample latitude "with respect to his desired lines of inquiry, and the courts ruling on elicitation of defendants criminal record constituted an appropriate warning against opening the door to damaging testimony.
The prosecutor properly cross-examined defendants witness regarding his failure to come forward promptly with exculpatory information, after establishing that defendant and the witness had a long-time, close relationship, that the witness was aware of the charge pending against defendant and that the witness had the opportunity to come forward expeditiously ( People v. Dawson, 50 N.Y.2d 311).
The courts supplementary instruction to the jury regarding the Peoples burden of proof in connection with the element of possession did not constructively amend the theory of prosecution, since there was no material variance between the indictment and discovery materials, on the one hand, and the evidence at trial on the other ( see, People v. Perry, 226 A.D.2d 282, lv denied 88 N.Y.2d 940).
We have considered defendants additional claims of error and find them to be without merit.
Concur — Lerner, P. J., Ellerin, Rubin, Tom and Andrias, JJ.