Opinion
March 12, 1992
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
The record is not adequate to review defendant's argument that a hearing was necessary to determine whether the prosecutor had race neutral reasons for exercising her peremptory challenges excluding black jurors (see, People v Rodriguez, 177 A.D.2d 269). A "`pattern of strikes'" may suggest an improper use of challenges (People v Jenkins, 75 N.Y.2d 550, 556), but counsel's speculative numerical analysis did not satisfy his obligation to make a preliminary showing of impropriety.
In view of trial counsel's concession that appropriate curative instructions were given regarding the proof of uncharged crimes that was stricken from the record, denial of defendant's eleventh hour motion for a mistrial was not an abuse of discretion (People v Ortiz, 54 N.Y.2d 288, 292). Defendant went forward with the trial with the understanding that the court would address the objectionable evidence in the very fashion that it did, and we can presume that the jury followed the court's specific instruction (People v Davis, 58 N.Y.2d 1102).
Defendant's conviction is not against the weight of the evidence. While defendant's medical evidence raised an issue for the jury, our review of the record discloses no reason to disturb the jury's determination of the identification issue (see, People v Bleakley, 69 N.Y.2d 490). Also, no error was committed in disallowing defendant's offer of a 911 tape purportedly showing that the perpetrator the police were pursuing fled into an apartment. In contrast to People v Brown ( 179 A.D.2d 485), here there was no independent confirmation of the contents of the tape (see also, People v Watson, 100 A.D.2d 452).
Concur — Murphy, P.J., Rosenberger, Ellerin, Kupferman and Kassal, JJ.