PEOPLE v. JOHNSON (2007)

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 7, 2005, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 25 and 15 years, respectively, 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 failed to make a prima facie showing of racial discrimination in the People's exercise of their peremptory challenges, because defendant's very limited statistical evidence was not strong enough, by itself, to raise an inference of discrimination (see People v. Brown, 97 N.Y.2d 500, 507-508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002];  People v. Childress, 81 N.Y.2d 263, 266-267, 598 N.Y.S.2d 146, 614 N.E.2d 709 [1993];  cf. Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 [1977] ), and it was unsupported by any other circumstances suggesting discrimination.   As the court noted, the Batson application, made at an early stage of jury selection when the prosecutor had only exercised a few challenges, lacked sufficient support (see People v. Millan, 216 A.D.2d 93, 628 N.Y.S.2d 90 [1995], lv. denied 86 N.Y.2d 798, 632 N.Y.S.2d 511, 656 N.E.2d 610 [1995] ).   Jury selection was completed in the second round.   Defendant never accepted the court's invitation to renew his application at a later juncture.   Therefore, 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] ).

 Defendant opened the door to the court's modification of its Sandoval ruling by his testimony that he pleaded guilty on previous occasions because he was, in fact, guilty (see People v. Cooper, 92 N.Y.2d 968, 683 N.Y.S.2d 757, 706 N.E.2d 745 [1998];  People v. Ferguson, 190 A.D.2d 610, 593 N.Y.S.2d 817 [1993], lv. denied 81 N.Y.2d 970, 598 N.Y.S.2d 771, 615 N.E.2d 228 [1993] ), and the matters elicited by the prosecutor were relevant to such motivation (see People v. Baez, 1 A.D.3d 203, 767 N.Y.S.2d 106 [2003], lv. denied 1 N.Y.3d 624, 777 N.Y.S.2d 23, 808 N.E.2d 1282 [2004] ).   Even if we were to find any error in the modified ruling or the scope of cross-examination, we would find it harmless in view of the strong evidence of guilt which included the victim's testimony and the pawn shop and cell phone records indicating that defendant was in possession of the items stolen from the victim.

We perceive no basis for reducing the sentence.