Opinion
March 15, 2001.
Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 7, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Alice Wiseman, for respondent.
Jonathan M. Kirshbaum, for defendant-appellant.
Before: Ellerin, J.P., Wallach, Lerner, Saxe, JJ.
Defendant's claim under Batson v. Kentucky ( 476 U.S. 79) was rendered moot when the People offered to withdraw their challenge to the sole prospective juror in question and to seat her as a juror, thereby affording defendant the precise remedy he had sought on his unsuccessfulBatson application (see, People v. Monserate, 256 A.D.2d 15, lv denied 93 N.Y.2d 855). Moreover, the issue was affirmatively waived when defendant then exercised his own peremptory challenge to the same prospective juror (see, People v. Miller, 41 N.Y.2d 857). Defendant's claim, raised for the first time on appeal, that the sequence of events could have affected his jury selection strategy is conclusory and unfounded (see, People v. Perez, 245 A.D.2d 71, lv denied 91 N.Y.2d 976). In any event, defendant's Batson claim was without merit. A fair reading of the totality of the record establishes that the court ruled, correctly, that no prima facie showing of discrimination had been made, and did not rule on the ultimate question of intentional discrimination (see, People v. Ocasio, 253 A.D.2d 720, lv denied 92 N.Y.2d 1036; People v. Barnes, supra).
The court properly exercised its discretion in denying defendant's mistrial motion based on certain comments by the prosecutor in the course of her summation, which comments could have been perceived as bolstering the undercover police witness's credibility, since these brief and isolated comments, even if improper, did not deprive defendant of a fair trial (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). Defendant's claim that the court failed to give a sufficient curative instruction addressing the challenged comments is unpreserved, since, after the court agreed to include such an instruction in its final charge, and after the final charge included a general instruction on police credibility, defendant took no exception (see,People v. Whalen, 59 N.Y.2d 273, 280), and we decline to review this claim in the interest of justice.