PEOPLE v. HARRIS (2008)

Judgments, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 16, 2007, convicting defendants, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing each of them, as a second felony drug offender, to an aggregate term of 6 years, unanimously affirmed.

 The court properly denied defendants' applications made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   Regardless of whether hybrid groups are cognizable under Batson, defendants 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 that the prosecutor discriminated against white women in his exercise of peremptory challenges.   The Batson claim only applied to the first of three rounds of jury selection, and the numbers of white women challenged by the prosecutor were too small to be significant (see People v. Johnson, 37 A.D.3d 344, 830 N.Y.S.2d 134 [2007], lv. denied 8 N.Y.3d 986, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007];  compare People v. Rosado, 45 A.D.3d 508, 846 N.Y.S.2d 165 [2007] ).   Furthermore, there were no other facts or circumstances suggesting intentional discrimination.

 The court properly denied defendants' mistrial motions, made on the ground that the prosecutor's summation contained allegedly improper references to drug dealers or the business of selling drugs.   These remarks drew fair inferences from the evidence, as well as being responsive to defense efforts to show that defendants' behavior during this incident was not typical of drug dealers (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).   Defendants' other summation claims are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we find no basis for reversal (see id.;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

The evidence established that a 20-dollar bill, which was part of the prerecorded buy money, was recovered from defendant Smith rather than from defendant Harris or anyone else, and there is no merit to Smith's claim to the contrary.   Even though the officer who arrested Smith testified he recovered $20 from Smith's pocket, without specifying that it was a 20-dollar bill, the testimony of the officer who arrested Harris made it clear that this bill could only have come from Smith.   Smith's claim that his conviction was against the weight of the evidence is likewise without merit (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

We perceive no basis for reducing the sentences.