PEOPLE v. VIRGIL (2000)

 We reject defendant's contention pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, that the prosecutor failed to offer a race-neutral reason for exercising his peremptory challenge to exclude a prospective juror (see, People v. Bennett, 206 A.D.2d 382, 383, 614 N.Y.S.2d 430, lv. denied 85 N.Y.2d 859, 624 N.Y.S.2d 378, 648 N.E.2d 798;  People v. Duncan, 177 A.D.2d 187, 193-194, 582 N.Y.S.2d 847, lv. denied 79 N.Y.2d 1048, 584 N.Y.S.2d 1016, 596 N.E.2d 414).   County Court's failure to rule on defendant's pro se motion to set aside the verdict on the ground of insufficient evidence does not require that the matter be remitted.   A court's failure to rule is deemed a denial of the motion (see, People v. Bailey, 58 N.Y.2d 272, 275, 460 N.Y.S.2d 912, 447 N.E.2d 1273).   In any event, the motion “was unavailing” because defendant was represented by assigned counsel and the record fails to establish that defense counsel adopted the motion as his own (People v. Pitcher, 182 A.D.2d 878, 879, 581 N.Y.S.2d 908, lv. denied 80 N.Y.2d 933, 589 N.Y.S.2d 860, 603 N.E.2d 965).   Defendant's further contention that the record is insufficient to support the court's determination to sentence defendant as a persistent felony offender is without merit (see, Penal Law § 70.10[2];  CPL 400.20[1] ).   In addition to the proof of two prior felonies, the court relied on the presentence report, which showed that defendant had an extensive criminal history sufficient to establish that his background warranted extended incarceration (see, People v. Ketchmore,132 A.D.2d 889, 892, 518 N.Y.S.2d 234, lv. denied 70 N.Y.2d 752, 520 N.Y.S.2d 1027, 514 N.E.2d 1379).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: