Opinion
November 28, 1988
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's contention that the prosecutor improperly used peremptory challenges to exclude blacks from the jury is not preserved for appellate review (cf., People v. Scott, 70 N.Y.2d 420). In any event, we find that he has failed to establish a prima facie case that the prosecutor's peremptory challenges were employed for a discriminatory purpose (see, Batson v. Kentucky, 476 U.S. 79; People v. Scott, supra). Notably, the defendant makes no claim that the People excluded all blacks from the jury (see, People v. Jones, 143 A.D.2d 1044; People v Williams, 141 A.D.2d 783), and, in fact, the record indicates that despite available peremptory challenges at least two black jurors were impanelled.
In addition, we find that the sentence imposed was not excessive under the circumstances of this case.
We have examined the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Spatt, Sullivan and Balletta, JJ., concur.