PEOPLE v. WILLIAMS

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

The PEOPLE, etc., Respondent, v. Carol WILLIAMS a/k/a Carol McKay, Appellant.

Decided: September 28, 1998

Before O'BRIEN, J.P., SULLIVAN, JOY and FRIEDMANN, JJ. James E. Neuman, New York, N.Y., for appellant. James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Joanne V. Smith of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Corso, J.), rendered February 6, 1997, convicting her of grand larceny in the second degree and fraud under the Social Services Law, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that a Batson violation occurred during jury selection is unpreserved for appellate review (see, People v. Hill, 182 A.D.2d 640, 582 N.Y.S.2d 246;  People v. Campanella, 176 A.D.2d 813, 575 N.Y.S.2d 137;  see also, People v. Rivera, 225 A.D.2d 392, 640 N.Y.S.2d 483) and, in any event, is without merit (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;  People v. Vidal, 212 A.D.2d 553, 622 N.Y.S.2d 323;  People v. Morla, 245 A.D.2d 468, 666 N.Y.S.2d 675;  People v. Gray, 243 A.D.2d 648, 665 N.Y.S.2d 520).   During the second round of jury selection, the defense counsel stated only that he thought “the prosecutor should have to give an independent reason for his peremptories if he continues to strike just females”.   Defense counsel's statement was grounded solely upon a claimed discriminatory pattern of peremptory strikes exercised by the prosecution to exclude female venirepersons.   At the time the issue was raised, the prosecutor had stricken only 5 of 13 female venirepersons.   The Supreme Court rejected the defendant's Batson challenge, and we find no basis on this record to disturb the court's ruling.

 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;  People v. Vidal, supra, at 554, 622 N.Y.S.2d 323).   Here, the defense counsel wholly failed to satisfy his obligation to articulate on the record a sound factual basis for his Batson claim, noting only the bare fact that the only peremptory challenges the prosecution exercised were against females.   In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, we find that the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination (see, People v. Bolling, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136;  see also, People v. Jenkins, 84 N.Y.2d 1001, 622 N.Y.S.2d 509, 646 N.E.2d 811;  People v. Childress, supra;  People v. Gray, supra;  People v. Morla, supra;  People v. Robert G., 241 A.D.2d 499, 660 N.Y.S.2d 154;   People v. Overton, 238 A.D.2d 528, 657 N.Y.S.2d 192;  People v. Morris, 217 A.D.2d 710, 630 N.Y.S.2d 329, affd. 88 N.Y.2d 519, 647 N.Y.S.2d 142, 670 N.E.2d 426;  People v. Vidal, supra, at 554, 622 N.Y.S.2d 323).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.

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