People v Joseph Frederick

People v Frederick 2006 NY Slip Op 05207 [30 AD3d 346] June 29, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

The People of the State of New York, Respondent,
v
Joseph Frederick, Appellant.

—[*1]

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed, without costs.

The court properly denied defendant's application made pursuant to Batson v Kentucky (476 US 79 [1986]). The record supports the court's determination that defendant did not make the necessary prima facie showing (see People v Brown, 97 NY2d 500, 507-508 [2002]). Even assuming that a panelist whose ethnicity was in dispute was, in fact, African-American, we conclude that defendant's statistical evidence (see Castaneda v Partida, 430 US 482, 496 n 17 [1977]) was not "sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred" (Johnson v California, 545 US 162, —, 125 S Ct 2410, 2417 [2005]).

As the People concede, since the crime was committed prior to the effective date of the legislation (Penal Law § 60.35 [1] [a] [v] [former (1) (e)]), providing for the imposition of a DNA databank fee, that fee should not have been imposed.

We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Sullivan, Williams, Catterson and McGuire, JJ.