Opinion
1997-04767
Submitted June 13, 2002.
August 5, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered May 6, 1997, convicting him of murder in the second degree and attempted robbery in the third degree, upon a jury verdict, and imposing sentence.
Robert DiDio, Kew Gardens, N.Y. (Patricia D. Levan of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Mina Malik, and Nicole H. Baker of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the judgment is affirmed.
The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79) was properly denied since he failed to establish a prima facie case of discrimination. To establish a prima facie case, a defendant must demonstrate that members of a cognizable racial group were excluded from the jury venire, and that facts and other relevant circumstances support an inference of impermissible discrimination (see People v. Brown, 97 N.Y.2d 500; People v. Childress, 81 N.Y.2d 263). The defendant failed to satisfy the second element. His assertion that the prosecutor struck a disproportionate number of black venirepersons was insufficient to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination (see People v. Brown, supra).
Contrary to the defendant's contention, the People were properly permitted to present, in rebuttal, witnesses whose testimony contradicted the defendant's testimony concerning his whereabouts at the time of the murder (see People v. Cade, 73 N.Y.2d 904; People v. Gross, 171 A.D.2d 810). Although the challenged testimony tended to impeach the defendant's credibility, it was not collateral since it related to a material issue in the case (see People v. Gross, supra; People v. Beavers, 127 A.D.2d 138).
The defendant's remaining contentions are without merit.
O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.