PEOPLE v. LITTLE (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03).   The contention of defendant that he was denied his constitutional right to present a defense is not preserved for our review (see People v. Brown, 4 A.D.3d 886, 889, 772 N.Y.S.2d 143, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198).   In any event, that contention is without merit because defendant failed to provide the requisite notice of intent to offer psychiatric evidence pursuant to CPL 250.10(2) (see Brown, 4 A.D.3d at 889, 772 N.Y.S.2d 143;  People v. Rivers, 281 A.D.2d 348, 348-349, 723 N.Y.S.2d 14, lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 641, 758 N.E.2d 667).   Insofar as defendant contends that he was not required to comply with CPL 250.10, that contention is also without merit.   The evidence of defendant's psychiatric history and low intelligence that defendant sought to introduce constitutes “psychiatric evidence” within the meaning of CPL 250.10(1) (see Brown, 4 A.D.3d at 887-888, 772 N.Y.S.2d 143;  People v. Mai, 175 A.D.2d 692, 573 N.Y.S.2d 90, lv. denied 78 N.Y.2d 1081, 577 N.Y.S.2d 244, 583 N.E.2d 956;  People v. Oakes, 168 A.D.2d 893, 565 N.Y.S.2d 648, lv. denied 78 N.Y.2d 957, 573 N.Y.S.2d 652, 578 N.E.2d 450).

 Defendant's contention concerning the alleged legal insufficiency of the evidence is not preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the evidence is legally sufficient to disprove the agency defense beyond a reasonable doubt (see People v. Brown, 13 A.D.3d 163, 789 N.Y.S.2d 877, lv. denied 4 N.Y.3d 828, 796 N.Y.S.2d 583, 829 N.E.2d 676;  People v. Watkins, 284 A.D.2d 905, 906, 726 N.Y.S.2d 513, lv. denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382), and we further conclude that the verdict is not against the weight of the evidence with respect to the jury's rejection of the agency defense (see Brown, 13 A.D.3d 163, 789 N.Y.S.2d 877;  Watkins, 284 A.D.2d at 906, 726 N.Y.S.2d 513).   We reject the further contention of defendant that County Court erred in denying his Batson objection.   The prosecutor gave a race-neutral and gender-neutral explanation for his use of a peremptory challenge with respect to a black female prospective juror, i.e., the prospective juror stated that she did not know if she could put aside her formal training in criminal justice while deliberating, and defendant failed to meet his burden of establishing that the prosecutor's explanation was pretextual (see People v. McCauley, 19 A.D.3d 1130, 796 N.Y.S.2d 488, lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160;  People v. Harris, 1 A.D.3d 881, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919).

Although defendant contends that the court's Sandoval ruling constitutes an abuse of discretion, he objected to the court's ultimate Sandoval ruling only with respect to the ruling on a misdemeanor sexual abuse conviction, and thus only that part of his contention is preserved for our review (see People v. Brown, 16 A.D.3d 1102, 790 N.Y.S.2d 912, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264).   In any event, the court's Sandoval ruling in its entirety “balanced the appropriate factors and was a proper exercise of discretion” (People v. McAllister, 245 A.D.2d 184, 184, 665 N.Y.S.2d 897, lv. denied 91 N.Y.2d 894, 669 N.Y.S.2d 9, 691 N.E.2d 1035).   Finally, contrary to the contentions of defendant in his pro se supplemental brief, he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the verdict convicting him of criminal sale of a controlled substance in the third degree but acquitting him of criminal possession of a controlled substance in the third degree is not repugnant (see People v. Stovall, 273 A.D.2d 915, 709 N.Y.S.2d 316, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: