People v Cook

People v Cook 2009 NY Slip Op 09159 [68 AD3d 511] December 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Earl Cook, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered April 7, 2008, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The court properly denied defendant's application made pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant did not produce "evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred" (Johnson v California, 545 US 162, 170 [2005]), and thus failed to make a prima facie showing of gender discrimination in the People's exercise of their peremptory challenges. Defendant does not allege that the People excluded a disproportionate number of men from the panel, but instead alleges a disparity between the rate at which the People challenged male panelists and the percentage of men in the available panel (see Jones v West, 555 F3d 90, 98 [2d Cir 2009]). However, we conclude that, given the number of panelists involved, the rate of challenges to men was not so "significantly higher than the [male] percentage of the venire" as to "support a statistical inference of discrimination" (United States v Alvarado, 923 F2d 253, 255 [2d Cir 1991]; cf. Castaneda v Partida, 430 US 482, 496 n 17 [1977]). The record does not support defendant's additional argument that characteristics of the challenged panelists also give rise to an inference of discrimination. Concur—Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ.