Opinion
September 27, 2001.
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered February 9, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.
Vincent Rivellese, for respondent.
Susan Epstein Gerald Zuckerman, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Ellerin, Saxe, Buckley, JJ.
Defendant's Rosario claim does not warrant reversal. The record does not establish that the paperwork demanded ever existed and constituted a written or recorded statement of a testifying witness (see, People v. Gonzalez, 203 A.D.2d 192, lv denied, 84 N.Y.2d 826). Moreover, the paperwork sought does not relate to the sale for which defendant was charged and was not relevant. In any event, even if we were to find aRosario violation in the People's refusal to disclose the material in question, we would find that defendant has not made the showing of prejudice required by CPL 240.75, which is applicable to all appeals decided after its effective date (see, People v. Wolf, 284 A.D.2d 102, 103-104).
Defendant's application made pursuant to Batson v. Kentucky ( 476 U.S. 79) was properly denied. Defendant has failed to provide an adequate record for review of this claim (see, People v. Smith, 186 A.D.2d 35, 38, affd, 81 N.Y.2d 875), and, on the available record before us, we find that defendant failed to establish a prima facie case of purposeful discrimination (see, People v. Jenkins, 84 N.Y.2d 1001; People v. Childress, 81 N.Y.2d 263, 267; People v. Bolling, 79 N.Y.2d 317, 320).
The challenged portion of the prosecutor's remarks, when viewed in context of the defense summation, did not shift the burden of proof (see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976).
We perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.