PEOPLE v. QUEEN (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered June 11, 1997, convicting him of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and sentencing him to indeterminate terms of 10 to 20 years imprisonment for each conviction of criminal sale of a controlled substance in the third degree, and for the conviction of criminal possession of a controlled substance in the third degree, and a determinate term of one year imprisonment for criminal possession of a controlled substance in the seventh degree, with the sentence on the first conviction to run consecutive to the sentences on the latter three convictions, which run concurrent with each other.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by (1) vacating the conviction for criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) deleting the provision directing that the sentence imposed on the first conviction of criminal sale of a controlled substance in the third degree shall run consecutive to the other sentences and substituting therefor a provision that all of the sentences shall run concurrent with one another;  as so modified, the judgment is affirmed.

 The court's denial of the defendant's request for an adjournment on the day of trial for the purpose of securing witnesses was proper.   The defendant had not identified the witnesses to the court, had not demonstrated that the testimony of those witnesses were material, and failed to exercise due diligence and good faith (see, People v. Foy, 32 N.Y.2d 473, 346 N.Y.S.2d 245, 299 N.E.2d 664).

During jury selection, the defendant objected, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to the prosecution's exercise of peremptory challenges against all the black jurors on the first round of voir dire.   The trial court found the existence of a “cognizable group”, accepted the prosecution's explanations for the challenges, and dismissed the jurors.   On appeal, the defendant contends that the court erred in allowing those challenges.

 The prosecution satisfied its obligation to provide facially neutral reasons for rejecting each of the challenged jurors (see, People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Allen, 86 N.Y.2d 101, 109-110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   The burden then shifted to the defendant to demonstrate that the explanations were pretextual (see, People v. Payne, supra, at 181, 643 N.Y.S.2d 949, 666 N.E.2d 542).  The trial court correctly determined that the defendant failed to meet his burden of demonstrating that the disputed challenges were the product of purposeful discrimination (see, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834;  Hernandez v. New York, 500 U.S. 352, 364-365, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Payne, supra).

 The People concede that criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree.   We agree and dismiss that count of the indictment as a matter of law (see, People v. Martinez, 209 A.D.2d 641, 642, 619 N.Y.S.2d 134).

We further find that the sentence was excessive to the extent indicated.

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.