People v. Miah

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered February 4, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

The court properly denied defendant’s application pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant failed to make a prima facie showing of racial discrimination by the prosecution in the exercise of its peremptory challenges. Defendant’s numerical argument was unpersuasive, and he failed to show disparate treatment of similarly situated panelists or other relevant circumstances sufficient to raise an inference of a discriminatory purpose (see People v Brown, 97 NY2d 500, 507-508 [2002]).

Defendant established a sufficient foundation for a missing witness instruction regarding a nontestifying police officer, as well as for the introduction, as a business record, of a police report containing the author’s personal observations. However, we find both errors to be harmless in light of the overwhelming evidence of defendant’s guilt (see People v Crimmins, 36 NY2d 230 [1975]). Concur—Nardelli, J.P., Andrias, Sullivan, Ellerin and Gonzalez, JJ.