People v. Lowe
| Decision Date | 23 December 1996 |
| Parties | The PEOPLE, etc., Respondent, v. Gary LOWE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lisa DiDio, Kew Gardens, for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie, Robin A. Forshaw, and Stephen Antignani, of counsel), for respondent.
Before MILLER, J.P., and ALTMAN, KRAUSMAN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered May 17, 1995, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. Justice McGinity has been substituted for the late Justice Hart (22 NYCRR 670.1[c] ).
ORDERED that the judgment is affirmed.
Contrary to the defendant's contentions, the court did not err in determining the respective Batson challenges raised by the prosecution and the defendant in this case.
It is incumbent upon the party mounting a Batson challenge to articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed (see, People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709). In this case, the defendant completely failed to satisfy his obligation to articulate on the record a sound factual basis for his Batson claim against the prosecution's exercise of its peremptory challenges. In support of his Batson application, the defendant noted only that the prosecutor had exercised seven peremptory challenges against black venire-persons. In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the trial court correctly found that the defendant had failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see, People v. Vidal, 212 A.D.2d 553, 554, 622 N.Y.S.2d 323; People v. Drcelik, 212 A.D.2d 725, 622 N.Y.S.2d 807). Furthermore, the jury that convicted the defendant included at least two black jurors (see, People v. Harper, 124 A.D.2d 593, 507 N.Y.S.2d 874; People v. Bush, 112 A.D.2d 1046, 492 N.Y.S.2d 834).
The defendant's further contention that the prosecutor failed to establish a prima facie case of purposeful discrimination as to the defendant's exercise of peremptory challenges during jury selection is unpreserved for appellate review. In any event the record reveals that...
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Caston v. Costello, 97CV7623 (ARR).
...defense counsel failed "to give the trial court a proper foundation to evaluate the claim." Id.; see also People v. Lowe, 234 A.D.2d 564, 564, 652 N.Y.S.2d 51, 52 (2d Dep't 1996) (denying a Batson claim because at the trial court the defendant had only noted the number of African-American v......
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