PEOPLE v. ACEVEDO (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered March 24, 1995, convicting him of criminal possession of a controlled substance in the third degree and menacing in the second 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.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the trial court properly applied the three-step Batson analysis in determining the prosecutor's application to disallow the defense counsel's use of peremptory challenges (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   The preliminary issue of whether the prosecutor made a prima facie showing that the defense counsel was exercising peremptory challenges on the basis of race and gender is academic because defense counsel explained his reasons for striking six prospective jurors after the first round of voir dire, and the court ruled on the ultimate question of intentional discrimination (see, Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395;  People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Colon, 228 A.D.2d 609, 644 N.Y.S.2d 755).   Furthermore, the court did not summarily reject the defense counsel's explanation for challenging the prospective white juror who was thereafter seated over his objection.   The court probed into the defense counsel's statement that he did not like the way this prospective juror responded to questioning before determining that the explanation was a pretext for discrimination, and it was not required to elicit additional comment from the prosecutor before making a finding that the proffered explanation was pretextual (see, People v. Payne, supra;  People v. Patterson, 237 A.D.2d 384, 655 N.Y.S.2d 427;  People v. Townsend, 234 A.D.2d 487, 651 N.Y.S.2d 577).   Moreover, the court's finding that the explanation was pretextual is supported by the record (see, People v. Townsend, supra;  People v. Robinson, 226 A.D.2d 561, 640 N.Y.S.2d 613;  People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).

 We further reject the defendant's claim that the narcotics recovered from his apartment should have been suppressed because the hearing court did not make a finding that the police entry into his apartment was lawful.   Although the hearing court failed to set forth any findings of fact or conclusions of law in this regard, there is a complete hearing record before us, sufficient to enable us to make our own findings and conclusions (see, CPL 470.15[1];  People v. Morgan, 226 A.D.2d 398, 640 N.Y.S.2d 586;  People v. Lewis, 172 A.D.2d 1020, 569 N.Y.S.2d 538).   Here, the uncontradicted testimony presented at the hearing amply demonstrates that the police entered the apartment with the consent of the leaseholder, who had requested that the officers arrest the defendant for menacing her, and that they properly seized the controlled substances from the location to which she had directed them (see, People v. Cosme, 48 N.Y.2d 286, 292, 422 N.Y.S.2d 652, 397 N.E.2d 1319;  People v. Keegan, 213 A.D.2d 282, 624 N.Y.S.2d 138;  People v. Johnson, 204 A.D.2d 350, 611 N.Y.S.2d 601).

The defendant's remaining contention is unpreserved for appellate review.

MEMORANDUM BY THE COURT.