Opinion
May 2, 1994
Appeal from the Supreme Court, Queens County (Cohen, J.).
Ordered that the judgment is affirmed.
The defendant's contention that certain minor discrepancies between the arresting officer's hearing testimony and trial testimony rendered his hearing testimony incredible as a matter of law is not properly before this Court, since the defendant never moved at trial to reopen the suppression hearing on this basis (see, CPL 470.05; People v. Sumpter, 192 A.D.2d 628, 629; People v. Denny, 177 A.D.2d 589, 590; People v. Hucks, 175 A.D.2d 213, 214). Moreover, the propriety of the denial of the defendant's suppression motion should be assessed upon the evidence before the suppression court (see, People v. Riley, 70 N.Y.2d 523, 532; People v. Dodt, 61 N.Y.2d 408, 417; People v Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the hearing court, which saw and heard the witness (see, People v. Gaimari, 176 N.Y. 84, 94). The hearing court's determination is accorded great weight on appeal and will not be disturbed unless it is clearly unsupported by the hearing record (see, People v. Prochilo, 41 N.Y.2d 759; see also, People v. Gaimari, supra). Furthermore, the defendant's arrest for criminal sale and possession of a controlled substance was supported by probable cause, since the arresting officer acted on the basis of a radio communication from the undercover officer who had personal knowledge of the facts transmitted (see, People v. Petralia, 62 N.Y.2d 47, 51, cert denied 469 U.S. 852; People v Pacheco, 192 A.D.2d 625). Therefore, the seizure of the prerecorded money from the defendant's person incident to the arrest was lawful (see, United States v. Robinson, 414 U.S. 218, 235; People v. De Santis, 46 N.Y.2d 82, cert denied 443 U.S. 912), and the drugs recovered from the floor on the driver's side of the car were properly admitted into evidence at trial (see, People v. Manganaro, 176 A.D.2d 354).
In asserting a claim of unlawful discrimination under Batson v Kentucky ( 476 U.S. 79), we find that the defendant failed to demonstrate facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race (see, Batson v. Kentucky, supra, at 96; People v. Childress, 81 N.Y.2d 263, 266; People v. Steele, 79 N.Y.2d 317, 325; People v Smith, 81 N.Y.2d 875, 876). The mere exercise of peremptory challenges here, standing alone, is insufficient to establish a "pattern of purposeful exclusion sufficient to raise an inference of discrimination" (People v. Steele, supra, at 325). We further note that although the defendant raised his Batson claim during the first round of jury selection, he did not allude to it again in the three ensuing voir dire sessions.
The defendant's complaint that the prosecution failed to supply him with purported Rosario material in the form of a District Attorney Data Sheet is unpreserved for appellate review (see, People v. Rogelio, 79 N.Y.2d 843; People v. Ciro, 195 A.D.2d 568; People v. Sheppard, 185 A.D.2d 904). In any event, we note that the prosecutor reported that he had searched for the Data Sheet but had been unable to find it, and that he believed it must have been inadvertently discarded or mislaid after the information it contained had been entered on other documents. In addition, the defendant failed to show that the People's failure to exchange the Data Sheet in any way prejudiced him, as the pedigree information it contained, as well as the time and location of the crime, were not at issue at the trial (see, People v. Davis, 173 A.D.2d 634).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Mangano, P.J., Thompson, Joy and Friedmann, JJ., concur.