People v. Barber

156 A.D.2d 1022, 549 N.Y.S.2d 313, 1989 N.Y. App. Div. LEXIS 16234

Opinion

Judgment unanimously affirmed. Memorandum: Defendant’s objection to the exercise of peremptory challenges against two prospective black jurors was untimely because the objection was made after all of the jurors, including the alternates, were sworn (see, People v Harris, 151 AD2d 961). Moreover, defense counsel did not move for a mistrial or request any other relief but only "noted” his objection "for whatever purpose that might be used for at some point”. Having failed to move for any relief, defense counsel has not preserved the issue for appellate review. Were we to reach the merits, we would affirm.

Under all of the circumstances, including the explanation given by the prosecutor for the exercise of his peremptory challenges, defense counsel did not sustain his ultimate burden of proving purposeful discrimination (see, Batson v Kentucky, 476 US 79, 98). The prosecutor explained that he exercised his challenges against the two black persons because they were unmarried and one was a nonhomeowner. In this case, involving a crime against property, the prosecutor had a reason for attempting to select homeowners and others who might own substantial property. Although defense counsel noted that there were other nonhomeowners on the jury "panels”, he did not show that nonhomeowners had been accepted as jurors. We have examined the defendant’s other contentions and find that none requires reversal. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — burglary, second degree.) Present — Boomer, J. P., Green, Pine, Lawton and Davis, JJ.