        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

862
KA 08-00826
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTOR L. GILCHRIST, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, CONFLICT DEFENDER, ROCHESTER (JOSEPH D.
WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered November 16, 2007. The judgment
convicted defendant, upon a jury verdict, of attempted robbery in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of attempted robbery in the second degree (Penal
Law §§ 110.00, 160.10 [2] [b]). The victim testified at trial that
defendant entered his store, pointed a sawed-off shotgun at him, and
demanded money. The victim and his friend (hereafter, main
prosecution witnesses) struggled with defendant, and defendant
eventually fled. Defendant contends that Supreme Court violated his
constitutional right to present a defense, i.e., that he did not
attempt to commit a robbery, but rather was involved in “a drug
transaction gone bad,” by precluding him from cross-examining a police
witness concerning drug activity at the store and from calling two
witnesses (defense witnesses) to testify concerning drug sales made by
the main prosecution witnesses. We reject that contention. With
respect to the police witness, the court properly determined that the
question posed on cross-examination, i.e., whether the store had “been
the focus of police attention prior to this date,” was beyond the
scope of direct examination and was premature because defendant had
not presented any evidence that the incident stemmed from a drug
transaction. “It is well settled that ‘[a]n accused’s right to cross-
examine witnesses . . . is not absolute,’ ” and “[t]he scope of cross-
examination is within the sound discretion of the trial court” (People
v Hayes, 17 NY3d 46, 53, cert denied ___ US ___, 132 S Ct 844). In
addition, the court advised defendant that he could call the police
witness as part of his direct case, but defendant chose not to do so.
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                                                         KA 08-00826

     With respect to the proposed testimony of the defense witnesses,
the court did not err in precluding those witnesses from testifying.
“ ‘Remote acts, disconnected and outside of the crime itself, cannot
be separately proved’ ” (People v Schulz, 4 NY3d 521, 529). Defendant
testified that he went to the store to purchase drugs, but he did not
testify that he had purchased drugs from the main prosecution
witnesses either on a prior occasion or on the day of this incident.
Instead, he testified that one of the main prosecution witnesses
attacked him as soon as that witness saw him enter the store because
defendant had allegedly robbed that witness’s brother. Because
defendant did not testify that this incident was a “drug transaction
gone bad,” any testimony from the defense witnesses that they
previously saw the main prosecution witnesses selling drugs somewhere
other than the store was not relevant. In any event, we agree with
the People that, even if the court erred in precluding the defense
witnesses from testifying, such error is harmless. The evidence
against defendant is overwhelming, and there is no reasonable
possibility that the error might have contributed to the conviction
(see People v Crimmins, 36 NY2d 230, 237).

     Defendant next contends that the court should have granted his
motion to dismiss the jury panel pursuant to the Sixth Amendment of
the United States Constitution on the ground that there was systematic
exclusion of African-Americans from criminal juries in Monroe County.
We reject that contention. “The right to a jury chosen from a fair
cross section is . . . protected by the Sixth Amendment guarantee of
an impartial jury trial in the context of a petit jury challenge”
(People v Guzman, 60 NY2d 403, 409 n 3, cert denied 466 US 951). “In
order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be
excluded is a ‘distinctive’ group in the community; (2) that the
representation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such persons
in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process”
(Duren v Missouri, 439 US 357, 364; see Guzman, 60 NY2d at 410).
Here, defendant failed to establish a prima facie violation of the
“fair-cross-section requirement” because, with respect to the third
prong of the test, he failed to submit any facts demonstrating a
systematic exclusion of African-Americans from the jury pool (see
People v Figgins, 48 AD3d 1042, 1043, lv denied 10 NY3d 840; People v
Cotton, 38 AD3d 1189, 1189, lv denied 8 NY3d 983).

     Finally, defendant failed to preserve for our review his
contention that the court failed to conduct the proper three-step
analysis when he raised a Batson challenge (see People v Scott, 81
AD3d 1470, 1471, lv denied 17 NY3d 801; People v Benjamin, 35 AD3d
1185, 1185-1186, lv denied 8 NY3d 919). In any event, his contention
is without merit (see People v Carmack, 34 AD3d 1299, 1301, lv denied
8 NY3d 879). Although defendant contends that the court failed to
determine whether defendant made a prima facie showing of
discrimination concerning a prospective juror under the first step of
the three-step Batson analysis, the issue whether defendant made such
a showing became moot once the prosecutor provided a race-neutral
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                                                         KA 08-00826

reason for exercising the peremptory challenge in connection with that
prospective juror (see People v Hecker, 15 NY3d 625, 652, cert denied
___ US ___, 131 S Ct 2117; People v Scott, 31 AD3d 1165, 1165, lv
denied 7 NY3d 851).




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
