People v. Ocasio

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered March 14, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, unanimously affirmed.

The Batson colloquy demonstrates that defendant failed to make a prima facie showing that the People’s peremptory challenge in question was motivated by a discriminatory intent (People v Bolling, 79 NY2d 317, 325). The issue of whether a prima facie showing was made is not moot (see, Hernandez v New York, 500 US 352, 359). Although the court did ask the People for an explanation of the challenge, and although the record is not always clear as to which Batson step was under consideration, a fair reading of the totality of the record establishes that the court did rule that there was no prima facie showing, and did not rule on the ultimate question of intentional discrimination (supra). In any event, we find that defendant’s present claims relating to the People’s response to the Batson application are unpreserved and without merit. Concur — Sullivan, J. P., Nardelli, Rubin, Tom and Mazzarelli, JJ.