Opinion
February 2, 1981
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 25, 1979, upon resentence (the original sentence was imposed July 20, 1977), convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The facts at bar are distinguishable from those in People v. Thompson ( 79 A.D.2d 87). In Thompson the People used at least 10 peremptory challenges, all against blacks, with the result that no blacks were seated on the jury. In this case, the People used 13 peremptory challenges, 7 against blacks and 6 against whites; one black was, in fact, seated on the jury. In People v. Thompson (supra, p 90) the Trial Judge, based upon his observation of the proceedings, "found" that the prosecutor "did in effect appear to the Court specifically and purposely to have excluded blacks in the jury." No such finding was made by the Trial Judge here. Upon this record and absent the unusual circumstances that were present in Thompson, we are unable to determine that there was a substantial likelihood that the challenges in question were based solely on race. We have considered the other issues raised by the defendant and find them to be without merit. Accordingly, we affirm. Damiani, J.P., Gibbons, Gulotta and Weinstein, JJ., concur.