Opinion
April 6, 1998
Appeal from the County Court, Westchester County (Lange, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof directing the defendant to make restitution in the amount of $200; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for a hearing and determination as to the proper amount of restitution.
During jury selection, the defendant objected, pursuant to Batson v. Kentucky ( 476 U.S. 79), to the prosecution's exercise of five peremptory challenges. On appeal, the defendant contends that the court erred in allowing those challenges. The prosecution proffered a race-neutral explanation for each of the challenges at issue, thereby satisfying its obligation to provide facially-neutral reasons for rejecting the jurors ( see, People v. Payne, 88 N.Y.2d 172, 181; People v. Allen, 86 N.Y.2d 101, 109-110). The burden then shifted to the defendant to demonstrate that each explanation was pretextual ( see, People v. Payne, supra, at 181). However, the defendant failed to meet this burden in that he offered no explanations to support his assertion that the prosecutor's explanations were a mere pretext for discrimination ( see, People v. Payne, supra, at 181; People v. Morrison, 235 A.D.2d 553).
Additionally, the court did not improvidently exercise its discretion by denying the defendant's challenges for cause of two prospective jurors. The jurors' responses to the inquiries of both the court and the defense counsel did not rise to the level of actual bias or otherwise indicate that either of them would be unable to render an impartial verdict ( see, People v. Williams, 63 N.Y.2d 882).
However, as the People concede, the amount of restitution ordered was not supported by the record, since the evidence adduced at trial indicates that the defendant stole from the victim $50 in cash, an undefined amount of change, and the victim's eyeglasses of undetermined value. As a result, a hearing on the proper amount of restitution is required ( see, People v. Atkins, 177 A.D.2d 492, 493; People v. Clougher, 95 A.D.2d 860).
The defendant's remaining contentions are without merit.
Miller, J.P., Sullivan, Pizzuto and Friedmann, JJ., concur.