People v. Contreras

• Decision Date: 14 June 1993
• Citation: 599 N.Y.S.2d 1004,194 A.D.2d 685
• Parties: The PEOPLE, etc., Respondent, v. Frederico CONTRERAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1004

599 N.Y.S.2d 1004

194 A.D.2d 685

The PEOPLE, etc., Respondent, v. Frederico CONTRERAS, Appellant.

Supreme Court of New York, Appellate Division Second Department.

June 14, 1993

Robert C. Gottlieb, Commack (Myra Derkatch Rochelson, of counsel), for appellant. Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Amy S. Griffin, and Charles D. Day, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered November 1, 1991, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. Although the prosecutor improperly argued in summation that the defendant failed to "explain" the evidence adduced by the People, the trial court averted any potential prejudice by promptly instructing the jury that the burden of proof remained on the People (see, People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450). We also find that the challenged comments made by the prosecutor regarding the credibility of the People's witnesses represented a fair response to the defense counsel's own summation (see, People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279, cert. denied 451 U.S. 914, 101 S.Ct. 1989, 68 L.Ed.2d 305; People v. Mason, 170 A.D.2d 464, 565 N.Y.S.2d 552; People v. Waldron, 154 A.D.2d 635, 546 N.Y.S.2d 460). The defendant further contends that the prosecutor's use of peremptory challenges against the only two Hispanic jurors in the jury pool was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. However, as defense counsel failed to articulate any facts or other relevant circumstances raising an inference of purposeful...