Opinion
145
August 29, 2002.
Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered November 1, 2000, 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 4-1/2 to 9 years, unanimously affirmed.
MINDY J. LEVINSON, for respondent.
LISA LEWIS, for defendant-appellant.
Before: Williams, P.J., Andrias, Buckley, Rosenberger, JJ.
Defendant's contention that the jury's verdict should be overturned as against the weight of the evidence because the testimony of the State's chief witness, the undercover detective was "farfetched and inconsistent" is unsustainable. The evidence established that the observing officer had ample opportunity to view the transaction in question, and there is no basis for this Court to disturb the jury's credibility determinations regarding that officer's testimony.
Similarly, there is no basis to overturn Supreme Court's grant of the prosecution's Batson v. Kentucky ( 476 U.S. 79) motion to disallow defendant's use of his peremptory challenges to exclude the only two Asian jurors on the panel. Supreme Court afforded both the prosecution and the defense a sufficient opportunity to make the necessary record and properly exercised its authority to disbelieve defendant's proffered race-neutral reason for the exclusion of the two Asian jurors (People v. Payne, 88 N.Y.2d 172, 184). The court's determination that the race-neutral reasons given by the defense were pretextual — a finding that is entitled to great deference (People v. Hernandez, 75 N.Y.2d 350, 356, affd 500 U.S. 352) — is supported by the record, which establishes that similarly situated non-Asian jurors were not similarly challenged by defendant.
Finally, Supreme Court's response to the jury's request for a readback of the undercover detective's testimony "dealing with the transaction in the street" was both meaningful and an appropriate exercise of its discretion. (See, People v. Lourido, 70 N.Y.2d 428, 435; People v. Faulkner, 195 A.D.2d 384.) A request for a reading of testimony generally is presumed to include cross-examination which impeaches the testimony to be read back (People v. Faulkner, 195 A.D.2d 384, 385), and any such testimony should be read to the jury unless the jury indicates otherwise. Here, the undercover detective's consistent denial that he made a prior inconsistent statement to another officer does not constitute impeachment testimony and its omission from the readback does not require reversal. The other omissions from the readback, which defendant asserts as error, did not cause or constitute "serious prejudice" (People v. Lourido, 70 N.Y.2d 428, 435) warranting reversal of defendant's conviction.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.