PEOPLE v. SIMS

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

The PEOPLE, etc., Respondent, v. Anthony SIMS, Appellant.

Decided: April 22, 2002

SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, and THOMAS A. ADAMS, JJ. Barry Gene Rhodes, Brooklyn, NY, for appellant. Charles J. Hynes, District Attorney, Brooklyn, NY, (Leonard Joblove and Cynthia Kean of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered June 21, 1999, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) was properly denied since he failed to establish a prima facie case of discrimination.   To establish a prima facie case, a defendant must demonstrate that members of a cognizable racial group were excluded from the jury venire, and that facts and other relevant circumstances support an inference of impermissible discrimination (see People v. Brown, 97 N.Y.2d 500, 743 N.Y.S.2d 374, 769 N.E.2d 1266;  People v. Childress, 81 N.Y.2d 263, 266, 598 N.Y.S.2d 146, 614 N.E.2d 709).   The defendant failed to satisfy the second element.   His assertion that the prosecutor struck a disproportionate number of black venirepersons was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination (see People v. Collins, 290 A.D.2d 457, 736 N.Y.S.2d 109).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

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