PEOPLE v. BRANCH

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

The PEOPLE, etc., Respondent, v. Adrian BRANCH, Appellant.

Decided: November 24, 1997

Before COPERTINO, J.P., and SULLIVAN, PIZZUTO and LERNER, JJ. Arza Rayches Feldman, Hauppauge, for appellant, and appellant pro se. Michael E. Bongiorno, District Attorney, New City (Lisa B. Cohen, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered May 24, 1995, convicting him of criminal possession of a controlled substance in the third degree (four counts) and criminal sale of a controlled substance in the third degree (four counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the racial composition of the jury panel was waived by his failure to make that challenge in writing to the trial court prior to the commencement of jury selection (see, CPL § 270.10[2];  People v. Prim, 40 N.Y.2d 946, 390 N.Y.S.2d 407, 358 N.E.2d 1033;  People v. Haye, 154 A.D.2d 392, 546 N.Y.S.2d 1).   Even in the absence of this procedural obstacle, however, the defendant's failure to demonstrate that the claimed underrepresentation of blacks and Hispanics was the result of systematic exclusion, i.e., exclusion “inherent in the particular jury-selection process utilized” (Duren v. Missouri, 439 U.S. 357, 366, 99 S.Ct. 664, 669, 58 L.Ed.2d 579), would require rejection of his challenge (see, People v. Guzman, 60 N.Y.2d 403, 411, 469 N.Y.S.2d 916, 457 N.E.2d 1143, cert. denied 466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d 541;  People v. Hobson, 227 A.D.2d 643, 643 N.Y.S.2d 610;  People v. Battle, 221 A.D.2d 648, 634 N.Y.S.2d 192).

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 contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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