Opinion
November 8, 1993
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
The trial court's ruling that the People established a prima facie case of purposeful discrimination by the defendant in the exercise of peremptory challenges is amply supported by the record. In raising the Batson claim (see, Batson v Kentucky, 476 U.S. 79), the prosecutor advised the Trial Judge that defense counsel had employed seven peremptory challenges during the first round of voir dire, all of which were against white members of the venire, thereby striking a disproportionate number of white prospective jurors (see, People v Childress, 81 N.Y.2d 263, 267; People v Jenkins, 75 N.Y.2d 550, 556). Further, as the court observed in rendering its ruling, the defendant had struck all of the white jurors from the second panel. Accordingly, there existed "facts and * * * other relevant circumstances" (Batson v Kentucky, supra, at 96; People v Childress, supra, at 266) sufficient to raise an inference that defense counsel had used his peremptory challenges to exclude potential jurors because of their race (see, People v Hawthorne, 80 N.Y.2d 873; People v Brown, 193 A.D.2d 611; People v Mondello, 191 A.D.2d 462; People v Hameed, 183 A.D.2d 847).
Under the circumstances of this case, the defendant's Batson claim was properly rejected by the trial court as untimely. Despite having had various opportunities to protest the prosecutor's exercise of peremptory challenges, defense counsel did not do so until after the jury had been sworn, the trial court had delivered its preliminary instructions to the jury, and the jury had been dismissed from the courtroom for the day. Indeed, although the defendant now contends that three of the prosecutor's four challenges during the first round of voir dire were improper, the record reveals that defense counsel specifically agreed that the members of the first panel were satisfactory. Moreover, throughout the extensive colloquy concerning the challenges to the members of the second panel prompted by the prosecutor's Batson motion, defense counsel failed to raise any discriminatory pattern he may have perceived in the prosecutor's jury selection. Unlike the case of People v Scott ( 70 N.Y.2d 420), in which the defendant's counsel was able to provide a satisfactory explanation for the belated assertion of a Batson claim on behalf of his client (see, 34-35 of trial transcript in People v Scott, supra, at A16-A17 of defendant's appendix in Court of Appeals), the defendant in this case could not justify his delay. The defendant has, accordingly, failed to preserve his Batson claim for review (see, People v Dunn, 158 A.D.2d 941; People v Harris, 151 A.D.2d 961; United States v Biaggi, 909 F.2d 662, 679, cert denied 499 U.S. 904; United States v Erwin, 793 F.2d 656, 657, cert denied 479 U.S. 991). Thompson, J.P., Balletta, Miller and Joy, JJ., concur.