The People of the State of New York, Respondent, v. Johnnie Malbon, Appellant

The People of the State of New York, Respondent, v Johnnie Malbon, Appellant. [MAJORITY] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered March 23, 1984, convicting him of criminally negligent homicide, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5). The defendant’s contention that the prosecutor improperly used peremptory challenges to exclude blacks from the jury is not preserved for appellate review (cf., People v Scott, 70 NY2d 420). In any event, we find that he has failed to establish a prima facie case that the prosecutor’s peremptory challenges were employed for a discriminatory purpose (see, Batson v Kentucky, 476 US 79; People v Scott, supra). Notably, the defendant makes no claim that the People excluded all blacks from the jury (see, People v Jones, 143 AD2d 1044; People v Williams, 141 AD2d 783), and, in fact, the record indicates that despite available peremptory challenges at least two black jurors were impanelled. In addition, we find that the sentence imposed was not excessive under the circumstances of this case. We have examined the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Spatt, Sullivan and Balletta, JJ., concur.