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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Isidore BARETTA, Defendant-Appellant.

Decided: October 19, 2004

TOM, J.P., LERNER, FRIEDMAN, MARLOW, GONZALEZ, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Lisa Lewis of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 2, 2002, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously affirmed.

 The court erroneously concluded that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986] does not apply to discrimination against males (see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141-142, 114 S.Ct. 1419, 128 L.Ed.2d 89 [1994] ).   However, the record is clear that the court, which employed the phrase “in any event,” made an alternative ruling that defendant failed to establish a prima facie case of discrimination.   The court correctly concluded that defendant's unpersuasive and unsupported numerical argument did not raise an inference of discrimination (see People v. Smocum, 99 N.Y.2d 418, 421-422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003];  People v. Brown, 97 N.Y.2d 500, 507-508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ).

 The court properly denied defendant's request for a missing witness charge since the uncalled officer's testimony would have been cumulative to the testimony of the officer who did testify at trial, as well as to photographic evidence depicting defendant's appearance at the time of his arrest (see People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).

 Following a hearing, the court properly determined that a witness's viewing of photographic arrays that pertained to a totally unrelated matter, that did not contain a photograph of defendant, and from which the witness failed to make an identification, was irrelevant, so that the People had not violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] or CPL 240.20(1)(d) by failing to turn over the arrays for inspection by the defense (see People v. McBayne, 160 A.D.2d 735, 555 N.Y.S.2d 608 [1990];  see also People v. Higgins, 178 A.D.2d 199, 200, 577 N.Y.S.2d 269 [1991], lv. denied 80 N.Y.2d 832, 587 N.Y.S.2d 916, 600 N.E.2d 643 [1992] ).   The hearing record establishes that there was nothing in the undisclosed photo arrays that could have undermined the reliability of the witness's identification of defendant.

We perceive no basis for reducing the sentence.