PEOPLE v. RODRIGUEZ (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered February 2, 1998, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the record in this case does not demonstrate that a Batson violation occurred during jury selection (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   It is incumbent upon the party mounting a Batson challenge to “articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed” (People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709).   Here, the defendant failed to articulate on the record a sound factual basis for his Batson claim, noting only the bare fact that the prosecution allegedly exercised nine of fourteen peremptory challenges against black venirepersons.   Use of a disproportionate number of strikes, without more, is rarely dispositive of the issue of an impermissible discriminatory motive.   In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the court correctly found that the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see, People v. Redish, 262 A.D.2d 664, 693 N.Y.S.2d 191;  People v. Phillips, 259 A.D.2d 565, 686 N.Y.S.2d 455;  People v. Willingham, 253 A.D.2d 533, 676 N.Y.S.2d 883, cert. denied 525 U.S. 1183, 119 S.Ct. 1126, 143 L.Ed.2d 119).

 Where the People fail to exercise due care in preserving Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) and the defendant is prejudiced thereby, the trial court must impose an appropriate sanction (see, People v. Joseph, 86 N.Y.2d 565, 635 N.Y.S.2d 123, 658 N.E.2d 996).   Here, the defendant failed to establish that he was prejudiced by the loss of certain Rosario material.   Consequently, the trial court did not err in failing to give an adverse inference charge (see, People v. Jarvis, 249 A.D.2d 417, 670 N.Y.S.2d 788;  People v. Monahan, 237 A.D.2d 623, 655 N.Y.S.2d 1011).

MEMORANDUM BY THE COURT.