People v. Battle
| Decision Date | 27 November 1995 |
| Citation | 634 N.Y.S.2d 192,221 A.D.2d 648 |
| Parties | The PEOPLE, etc., Respondent, v. Tyrone BATTLE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan E. Kudisch, Kew Gardens (Thomas McCullough, of counsel), for appellant.
Denis Dillon, District Attorney, Mineola (Tammy J. Smiley, Denise Pavlides, and Delores Heredia, of counsel), for respondent.
Before BALLETTA, J.P., and RITTER, COPERTINO and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Mogil, J.), rendered September 22, 1993, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the racial composition of the jury panel was waived by his failure to make that challenge in writing to the trial court prior to the selection of the jury (see, CPL 270.10[2]; People v. Parks, 41 N.Y.2d 36, 41, 390 N.Y.S.2d 848, 359 N.E.2d 358; People v. Consolazio, 40 N.Y.2d 446, 455, 387 N.Y.S.2d 62, 354 N.E.2d 801, cert. denied433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100; People v. Sloan, 202 A.D.2d 525, 609 N.Y.S.2d 67; People v. Haye, 154 A.D.2d 392, 546 N.Y.S.2d 1). Even in the absence of this procedural obstacle, however, the defendant's failure to demonstrate that the claimed underrepresentation of blacks was the result of systematic exclusion, i.e., "inherent in the particular jury-selection process utilized" (Duren v. Missouri, 439 U.S. 357, 366, 99 S.Ct. 664, 669, 58 L.Ed.2d 579), requires rejection of his challenge (see, People v. Guzman, 60 N.Y.2d 403, 411, 469 N.Y.S.2d 916, 457 N.E.2d 1143, cert. denied466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d 541; People v. Blake, 170 A.D.2d 613, 614, 566 N.Y.S.2d 387; People v. Haye, supra ).
Reversal is not warranted because of the failure to record the entire voir dire proceedings since the defendant has failed to demonstrate any prejudice (see, People v. Harrison, 85 N.Y.2d 794, 628 N.Y.S.2d 939, 652 N.E.2d 638; People v. Fearon, 13 N.Y.2d 59, 61, 242 N.Y.S.2d 33, 192 N.E.2d 8; People v. Cameron, 219 A.D.2d 662, 631 N.Y.S.2d 717).
The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
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