PEOPLE v. WRIGHT (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered January 3, 1995, convicting him of burglary in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence recovered by law enforcement authorities.

ORDERED that the judgment is affirmed.

 The defendant's contention that the court erred in failing to suppress the physical evidence seized at the time of his arrest is without merit.   The evidence adduced at the suppression hearing supports the hearing court's determination that the defendant was not unlawfully seized and that he voluntarily abandoned the property in the face of lawful police activity (see, People v. Medina, 107 A.D.2d 302, 307, 486 N.Y.S.2d 754;  see also, People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951;  People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687;  People v. Boodle, 47 N.Y.2d 398, 404, 418 N.Y.S.2d 352, 391 N.E.2d 1329;  People v. De Bour, 40 N.Y.2d 2l0, 386 N.Y.S.2d 375, 352 N.E.2d 562).

The defendant's further contention that his conviction for burglary and, inter alia, criminal possession of stolen property should be reversed because the prosecution failed to prove that he had entered and burglarized the subject apartment is equally without merit.   Upon viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 We reject the defendant's contention that the court erred in determining that he had exercised a peremptory challenge to exclude a white juror in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   Here, after the People raised a Batson issue, and after conducting the appropriate inquiry and weighing the relevant facts and circumstances, the court properly determined that the reasons advanced by the defendant for his challenge were pretextual (see, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834;  cf., People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).

 The trial court properly refused to give a missing witness charge with respect to the failure of one of the police officers to testify.   Since the defendant was on notice that the People would not be calling the police officer as a witness, the defendant's request for a missing witness charge, made only after both sides had rested, was untimely (see, People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Bennett, 175 A.D.2d 251, 572 N.Y.S.2d 716;  People v. Bradley, 160 A.D.2d 808, 554 N.Y.S.2d 72).   In any event, the testimony of the police officer would have been cumulative (see, People v. Gonzalez, supra).

The sentence imposed was neither harsh nor excessive (see, People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.