PEOPLE v. GANT (2002)

 Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03) and sentencing him to concurrent indeterminate terms of incarceration of 25 years to life and 7 1/212 to 15 years, respectively.   We reject defendant's contention that the verdict is against the weight of the evidence on the issue of identification (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Davis, 284 A.D.2d 943, 944, 725 N.Y.S.2d 911;  People v. Epps, 284 A.D.2d 996, 996-997, 728 N.Y.S.2d 607).   We reject defendant's further contention that Supreme Court erred in denying his Batson challenge to the prosecutor's peremptory strike of an African American prospective juror.   The prosecutor explained that he exercised that peremptory strike because the prospective juror lived only four blocks away from the crime scene, might have shopped at the corner store where the incident began, and might know or encounter some of the witnesses and spectators at trial or others acquainted with defendant or the victim.   The court properly found that explanation to be race-neutral on its face and not pretextual (see, People v. Simmons, 171 A.D.2d 1053, 1054, 569 N.Y.S.2d 241, affd. 79 N.Y.2d 1013, 584 N.Y.S.2d 423, 594 N.E.2d 917;  see generally, People v. Cuthrell, 284 A.D.2d 982, 726 N.Y.S.2d 903;  People v. Sell, 283 A.D.2d 920, 921, 725 N.Y.S.2d 486, lv. denied 96 N.Y.2d 867, 730 N.Y.S.2d 42, 754 N.E.2d 1125;  People v. Sprague, 280 A.D.2d 954, 721 N.Y.S.2d 205;  People v. Hinds, 270 A.D.2d 891, 892, 705 N.Y.S.2d 463, lv. denied 95 N.Y.2d 964, 722 N.Y.S.2d 482, 745 N.E.2d 402).

 The court did not err in precluding defendant from impeaching a prosecution witness with a prior arrest or the crime underlying that arrest.   A witness may be cross-examined concerning prior bad acts, but “the questions must be asked in good faith and must have a basis in fact * * *.   An acquittal of the witness or a dismissal on the merits negates the good-faith and basis-in-fact requirements” (People v. Steele, 168 A.D.2d 937, 938, 565 N.Y.S.2d 339, lv. denied 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589). As the party seeking to impeach the witness by inquiring into the arrest or the crime underlying it, defendant was required to establish that the witness was not acquitted or that the dismissal was not on the merits, and defendant failed to sustain that burden (see, People v. Stabell, 270 A.D.2d 894, 706 N.Y.S.2d 553, lv. denied 95 N.Y.2d 804, 711 N.Y.S.2d 173, 733 N.E.2d 245;  People v. Steele, supra, at 938, 565 N.Y.S.2d 339).   There is no merit to defendant's Rosario and Brady claims.   The court did not err in admitting the People's rebuttal testimony (see, People v. Cade, 73 N.Y.2d 904, 905, 539 N.Y.S.2d 287, 536 N.E.2d 616;  People v. Bennett, 266 A.D.2d 558, 699 N.Y.S.2d 122, lv. denied 95 N.Y.2d 832, 713 N.Y.S.2d 138, 735 N.E.2d 418;  People v. Strawder, 106 A.D.2d 672, 673-674, 482 N.Y.S.2d 922) and, in any event, any error in the admission of that rebuttal testimony is harmless (see generally, People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Brown, 266 A.D.2d 838, 838-839, 700 N.Y.S.2d 605, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 536, 725 N.E.2d 1098).   The sentence is not unduly harsh or severe.

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

MEMORANDUM: