NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 10, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
EARL COOK, DEFENDANT-APPELLANT.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered April 7, 2008, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, Saxe, Catterson, Acosta, JJ.
The court properly denied defendant's application made pursuant to Batson v Kentucky (476 US 79 ). Defendant did not produce "evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred" (Johnson v California, 545 US 162, 170 ), and thus failed to make a prima facie showing of gender discrimination in the People's exercise of their peremptory challenges. Defendant does not allege that the People excluded a disproportionate number of men from the panel, but instead alleges a disparity between the rate at which the People challenged male panelists and the percentage of men in the available panel (see Jones v West, 555 F3d 90, 98 [2d Cir 2009]). However, we conclude that, given the number of panelists involved, the rate of challenges to men was not so "significantly higher than the [male] percentage of the venire" as to "support a statistical inference of discrimination" (United States v Alvarado, 923 F2d 253, 255 [2d Cir 1991}; cf. Castaneda v Partida, 430 US 482, 496 n 17 ). The record does not support defendant's additional argument that characteristics of the challenged panelists also give rise to an inference of discrimination.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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