Opinion
1841
October 10, 2002.
Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered May 16, 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 7 to 15 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 6 to 12 years, and otherwise affirmed.
ALLEN H. SAPERSTEIN, for respondent.
FRANCINE BANNER, for defendant-appellant.
Before: Tom, J.P., Andrias, Saxe, Buckley, Lerner, JJ.
Defendant's application pursuant to Batson v. Kentucky ( 476 U.S. 79) was properly denied on the ground that defendant did not establish a prima facie case of discrimination. Given the racial composition of the panel, defendant's numerical argument was not so compelling as to be conclusive by itself, and it was not corroborated by any other evidence, such as disparate treatment by the prosecutor of similarly situated panelists (see People v. Brown, 97 N.Y.2d 500).
The People's Batson motion was properly granted. The court's determination that the race-neutral reasons given by the defense were pretextual is entitled to great deference (People v. Hernandez, 75 N.Y.2d 350, 356, affd 500 U.S. 352) and is supported by the record, which establishes that defendant challenged white jurors while declining to challenge similarly situated non-white jurors.
Defendant failed to preserve his claim regarding the court's use in sentencing of its conclusion that defendant gave perjurious testimony (see People v. Harris, 272 A.D.2d 225, lv denied 95 N.Y.2d 935), and we decline to review it in the interest of justice.
We find the sentence excessive to the extent indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.