PEOPLE v. VASQUEZ

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

The PEOPLE of the State of New York, Respondent, v. Luis VASQUEZ, Defendant-Appellant.

Decided: April 17, 2001

NARDELLI, J.P., MAZZARELLI, ANDRIAS, SAXE and FRIEDMAN, JJ. Yael V. Levy, for Respondent. Moira E. Casey, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (John Perone, J.), rendered April 29, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

 The People's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 was properly granted.   The record supports the court's determination that the reasons offered by defense counsel for his peremptory challenges of two prospective jurors were pretextual.   Such determinations are entitled to great deference (People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Wint, 237 A.D.2d 195, 655 N.Y.S.2d 469, lv. denied 89 N.Y.2d 1103, 660 N.Y.S.2d 397, 682 N.E.2d 998).

 The court properly exercised its discretion denying defendant's request to delay completion of the trial in order to secure as a defense witness a vacationing sergeant who had been supervisor of the field team (see, People v. Foy, 32 N.Y.2d 473, 476, 346 N.Y.S.2d 245, 299 N.E.2d 664).   The sergeant was not an eyewitness, and defendant wished to call him as a witness with respect to paperwork and other peripheral matters that had already been fully explored at trial through the testimony of other witnesses.   Similarly, defendant's request for a missing witness charge was properly denied since there was no showing that the sergeant would have provided material, noncumulative testimony.