PEOPLE v. SIMMONS (2007)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered November 15, 2005, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed.

 The court properly denied defendant's application made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   Defendant did not produce “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 [2005] ), and thus failed to make a prima facie showing of racial discrimination in the People's exercise of their peremptory challenges.   Defendant's argument is based entirely on an alleged disparity between the People's pattern of peremptory challenges and the pattern that would be “expected,” given the racial composition of the available panel of prospective jurors.   However, this argument is unreviewable because defendant failed to make any record of the racial makeup of the panel, which was his responsibility to make (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ).   Instead, defendant seeks to fill in this gap with speculative assumptions about his own exercise of peremptory challenges, which we find unpersuasive.   In any event, even if we were to accept defendant's assertions regarding his own challenges and calculate the racial composition of the panel accordingly, and even if we were to employ defendant's mode of analysis, we would still find that he has not shown a statistically significant disparity so as to raise an inference of discrimination (see Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 [1977] ).   To the extent that defendant is challenging the standard used by the trial court in determining that there was no prima facie case of discrimination, such claim is unpreserved and we decline to review it in the interest of justice.