PEOPLE v. FREDERICK (2006)

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed, without costs.

 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].   The record supports the court's determination that defendant did not make the necessary prima facie showing (see People v. Brown, 97 N.Y.2d 500, 507-508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ).   Even assuming that a panelist whose ethnicity was in dispute was, in fact, African-American, we conclude that defendant's statistical evidence (see Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 [1977] ) was not “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, 2417, 162 L.Ed.2d 129 [2005] ).

 As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35[1][a][v] [former (1)(e) ] ), providing for the imposition of a DNA databank fee, that fee should not have been imposed.

We perceive no basis for reducing the sentence.