People v. Virgil

266 A.D.2d 847, 698 N.Y.S.2d 801, 1999 N.Y. App. Div. LEXIS 11781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1999
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that Supreme Court committed reversible error in discharging a sworn juror as unavailable for continued service. The juror was discharged with the consent of defense counsel (see, People v Joy, 206 AD2d 440, lv denied 84 NY2d 869). Defendant failed to preserve for our review his contention that the court inadequately responded to the jury’s request for a readback of the testimony of two prosecution witnesses (see, CPL 470.05 [2]; People v Goldbeck, 218 AD2d 670, lv denied 87 NY2d 846; People v Figueroa, 216 AD2d 408, 409, lv denied 88 NY2d 847; People v Mitchem, 195 AD2d 1038, 1040, lv denied 82 NY2d 723), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). With respect to defendant’s Batson objection to the prosecutor’s exercise of a peremptory challenge (see, Batson v Kentucky, 476 US 79), the record establishes that the prosecutor gave a race-neutral reason for excluding the potential juror, and we see no basis to disturb the court’s determination that the reason given was not pretextual (see, People v Rivera, 225 AD2d 392, 393, lv denied 88 NY2d 969). Defendant’s remaining contention is without merit. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Murder, 1st Degree.) Present — Green, J. P., Lawton, Hayes, Hurlbutt and Balio, JJ.