Opinion
June 14, 1993
Appeal from the Supreme Court, Kings County (Hall, J.).
Ordered that the judgment is affirmed.
Although the prosecutor improperly argued in summation that the defendant failed to "explain" the evidence adduced by the People, the trial court averted any potential prejudice by promptly instructing the jury that the burden of proof remained on the People (see, People v. Berg, 59 N.Y.2d 294, 299-300). We also find that the challenged comments made by the prosecutor regarding the credibility of the People's witnesses represented a fair response to the defense counsel's own summation (see, People v. Arce, 42 N.Y.2d 179; People v. Mason, 170 A.D.2d 464; People v. Waldron, 154 A.D.2d 635).
The defendant further contends that the prosecutor's use of peremptory challenges against the only two Hispanic jurors in the jury pool was in violation of Batson v. Kentucky ( 476 U.S. 79). However, as defense counsel failed to articulate any facts or other relevant circumstances raising an inference of purposeful exclusion on the basis of race, we cannot find, on the record before us, that the defendant established a prima facie case of discrimination (see, People v. Childress, 81 N.Y.2d 263; People v Bolling, 79 N.Y.2d 317, 324). Mangano, P.J., O'Brien, Ritter and Pizzuto, JJ., concur.