PEOPLE v. LONDON (2007)

Appeal by the defendant from a judgment of the County Court, Nassau County (Weinberg, J.), rendered October 8, 2004, convicting her of assault in the second degree and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, she was provided with meaningful representation of counsel (see People v. Henry, 95 N.Y.2d 563, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).   The defense counsel, an experienced attorney, was vigorous in his representation of the defendant.   He pursued both a justification defense and a battered woman's defense.   The defense counsel's choice of expert, a tactical decision, did not constitute ineffective assistance.   Furthermore, the County Court providently exercised its discretion in denying the defendant's application to adjourn the trial (see People v. Spears, 64 N.Y.2d 698, 485 N.Y.S.2d 521, 474 N.E.2d 1189;  People v. Coward, 292 A.D.2d 630, 739 N.Y.S.2d 612).

 The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied, as she failed to make the requisite prima facie showing of discrimination.   In order to establish a prima facie case of discrimination in the selection of jurors under Batson, a defendant asserting a claim must show that the exercise of peremptory challenges by the prosecution removes one or more members of a cognizable racial group from the venire and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race (see People v. Brown, 97 N.Y.2d 500, 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266).   The mere fact that the prosecutor exercised 5 out of 12 peremptory challenges against Hispanic or African-American women was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see People v. Brown, supra at 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266;  People v. Fryar, 29 A.D.3d 919, 920, 814 N.Y.S.2d 755;  People v. Stanley, 292 A.D.2d 472, 473, 738 N.Y.S.2d 869;  People v. Harrison, 272 A.D.2d 554, 708 N.Y.S.2d 433;  People v. Phillips, 259 A.D.2d 565, 686 N.Y.S.2d 455).   Since the defendant did not establish the requisite pattern of discrimination, the burden never shifted to the prosecutor to come forward with a race-neutral explanation for her peremptory challenges (see People v. Brown, 97 N.Y.2d 500, 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266).   In several instances where the prosecutor did provide an explanation, although not required, the reasons proffered were race-neutral.

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.