PEOPLE v. FRAGOSO

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

The PEOPLE of the State of New York, Respondent, v. James FRAGOSO, Defendant-Appellant.

Decided: November 23, 1999

SULLIVAN, J.P., WALLACH, RUBIN, SAXE and FRIEDMAN, JJ. Erica M. Fitzgerald, for Respondent. Marie A. Corliss, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered January 21, 1997, convicting defendant, after a jury trial, of robbery in the first degree (2 counts) and grand larceny in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 9 to 18 years, 9 to 18 years and 2 to 4 years, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   We see no reason to disturb the jury's determinations concerning identification and credibility.   The value of the stolen car was properly established through expert testimony.

 The court properly disallowed a peremptory challenge by the defense after sufficiently complying with the protocols required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   The record supports the court's finding of a prima facie case of racial discrimination, and, in any event, that issue became moot when the court ruled on the ultimate issue of discrimination (People v. Payne, 88 N.Y.2d 172, 182, 643 N.Y.S.2d 949, 666 N.E.2d 542).   The court properly determined that defense counsel failed to advance a non-pretextual reason for the challenge in question, and was entitled to make a prompt finding of pretext (id., at 184, 643 N.Y.S.2d 949, 666 N.E.2d 542).

The record establishes that defendant received meaningful representation.   The alleged error by counsel could not have deprived defendant of a fair trial (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).

MEMORANDUM DECISION.