PEOPLE v. REDISH

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

The PEOPLE, etc., respondent, v. Terrence REDISH a/k/a Terrance Redish a/k/a Terence Redish, appellant.

Decided: June 28, 1999

CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ. M. Sue Wycoff, New York, N.Y. (Edlyn L. Willer of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Peter Mason of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered May 20, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the record in this case does not demonstrate that a Batson violation occurred during jury selection (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;   People v. Childress, 81 N.Y.2d 263, 598 N.Y.S.2d 146, 614 N.E.2d 709).   It is incumbent upon the party mounting a Batson challenge to “articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed” (People v. Childress, supra, at 268, 598 N.Y.S.2d 146, 614 N.E.2d 709).  Here, defense counsel failed to satisfy her obligation to articulate on the record a sound factual basis for her Batson claim, as she only noted the bare fact that the prosecution exercised five peremptory challenges against black venirepersons.   In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the trial court correctly found that the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see, People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136;  People v. Morla, 245 A.D.2d 468, 666 N.Y.S.2d 675;  People v. Lowe, 234 A.D.2d 564, 652 N.Y.S.2d 51;  People v. Vidal, 212 A.D.2d 553, 622 N.Y.S.2d 323).

 Furthermore, the prosecution did not exhaust all of its peremptory challenges, and three black venirepersons remained on the jury (see, People v. Harper, 124 A.D.2d 593, 507 N.Y.S.2d 874).   Accordingly, the burden of overcoming the inference of purposeful discrimination never shifted to the People (see, People v. Durant, 250 A.D.2d 698, 672 N.Y.S.2d 433).  The fact that the trial court permitted the People, upon the prosecutor's request, to offer facially-neutral reasons supporting the peremptory challenges does not render academic the issue of whether the defendant carried his initial burden to make a prima facie showing that the prosecutor's peremptory challenges were motivated by an intent to invidiously discriminate against black persons (see, People v. Durant, supra;  People v. Ocasio, 253 A.D.2d 720, 678 N.Y.S.2d 257).

MEMORANDUM BY THE COURT.

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