Opinion
528
March 19, 2002.
Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered July 27, 1998, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree (three counts), assault in the second degree and grand larceny in the fourth degree, and sentencing him to concurrent terms of 10 to 20 years, 7½ to 15 years, 7½ to 15 years, 7½ to 15 years, 3½ to 7 years and 1 to 4 years, respectively, unanimously affirmed.
NICOLE BEDER, for respondent.
VINCENT DAVID SCALA, for defendant-appellant.
Before: Nardelli, J.P., Buckley, Ellerin, Lerner, Rubin, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). On the contrary, we find the evidence to be overwhelming. Minutes after the crime, defendant was apprehended while driving the victim's cab and in possession of the victim's watch and money, whereupon he was promptly identified by the victim, and made a patently incredible statement to the police.
Defendant's application pursuant to Batson v. Kentucky ( 476 U.S. 79) was properly denied. The record supports the court's finding that the prosecutor provided race neutral, non-pretextual reasons for the peremptory challenges in question and such findings are entitled to great deference on appeal (see, People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352). The record establishes that the People's challenge to two panelists who, inter alia, were sleeping or dozing off was not pretextual (see, People v. Artis, 262 A.D.2d 215, affd 94 N.Y.2d 507). The balance of defendant's Batson argument is similar to an argument rejected by this Court on a codefendant's appeal, and there is no basis upon which to reach a different result herein (People v. Smalls, 276 A.D.2d 281, lv denied 95 N.Y.2d 938).
The court properly exercised its discretion in denying defendant's mistrial motion made on the grounds that a police witness improperly referred to a redacted portion of a codefendant's statement. The offending portion of the statement was not prejudicial to defendant, and the court struck the testimony and provided a thorough curative instruction (see, People v. Santiago, 52 N.Y.2d 865). In any event, were we to find any error in this regard, we would find such error to be harmless in light of the overwhelming evidence of defendant's guilt (People v. Hamlin, 71 N.Y.2d 750, 758-759; see also, People v. Smith, N.Y.2d [Feb 13, 2002], 2002 N.Y. LEXIS 154).
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.