People v. Henry , 766 N.Y.S.2d 551 ( 2003 )

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 3, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 5V2 to 11 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning identification (see People v Bleakley, 69 NY2d 490 [1987]). The purchasing undercover officer made a reliable identification of defendant, which was corroborated by the testimony of the “ghost” officer.

The People’s reverse-Batson application (Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]) was properly granted. The record supports the court’s determination that the reasons provided by defense counsel with respect to her peremptory challenge of the panelist at issue were pretextual. Such a finding is entitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd 500 US 352, 356-357 [1991]). The panelist had expressed a reluctance to convict on the testimony of a single witness, a factor that would favor defendant.

We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v Spence, 290 AD2d 223 [2002], lv denied 98 NY2d 641 [2002]; People v Kulakov, 278 AD2d 519 [2000], lv denied 96 NY2d 785 [2001]). Concur — Andrias, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.