PEOPLE v. COOK (2009)

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered April 7, 2008, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, 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 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] ), and thus failed to make a prima facie showing of gender discrimination in the People's exercise of their peremptory challenges. Defendant does not allege that the People excluded a disproportionate number of men from the panel, but instead alleges a disparity between the rate at which the People challenged male panelists and the percentage of men in the available panel (see Jones v. West, 555 F.3d 90, 98 [2d Cir.2009] ). However, we conclude that, given the number of panelists involved, the rate of challenges to men was not so “significantly higher than the [male] percentage of the venire” as to “support a statistical inference of discrimination” (United States v. Alvarado, 923 F.2d 253, 255 [2d Cir.1991]; cf. Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498 [1977] ). The record does not support defendant's additional argument that characteristics of the challenged panelists also give rise to an inference of discrimination.