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

The PEOPLE of the State of New York, Respondent, v. Terrence TURNER, Defendant-Appellant.

Decided: May 16, 2002

WILLIAMS, P.J., TOM, MAZZARELLI, ELLERIN and MARLOW, JJ. Rona Feinberg, for Respondent. Benjamin H. Rogoff, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 22, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, 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 4 1/212 to 9 years, unanimously affirmed.

 Defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 was properly denied.   Defendant failed to meet his burden of establishing that the prosecutor's facially race-neutral reasons for peremptorily challenging a prospective juror were pretextual (see, People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542), and the record supports the court's implicit finding of nonpretextuality.   The trial court was in the best position to assess the prosecutor's credibility (see, People v. Pena, 251 A.D.2d 26, 34-35, 675 N.Y.S.2d 330, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282) and the panelist's demeanor (see, People v. Barnes, 261 A.D.2d 281, 691 N.Y.S.2d 49, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 572, 719 N.E.2d 933).   The prosecutor's principal reason for challenging the juror was that she expressed hostility to police undercover operations, and the record fails to support defendant's claim that the prosecutor disparately treated a similarly situated panelist on the basis of race.   There were significant differences in the responses of the panelists and their demeanor.

 The court properly denied defendant's request for a missing witness charge.   The People made a sufficient showing that the officer in question was unavailable, for purposes of a missing witness charge, because he was recovering from surgery, had not worked for over a month, and was not expected to return to work for several months (see, People v. Maldonado, 271 A.D.2d 328, 329, 706 N.Y.S.2d 876, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370;  People v. Shaw, 160 A.D.2d 1032, 554 N.Y.S.2d 740;  People v. Aufiero, 139 A.D.2d 656, 657, 527 N.Y.S.2d 431).