Opinion
March 17, 1995
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Green, J.P., Pine, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that, because there was no proof that he recklessly caused the death of the victim, Supreme Court erred in submitting the crime of manslaughter in the second degree (Penal Law § 125.15) to the jury as a lesser included offense of murder in the second degree (Penal Law § 125.25). There is no merit to that contention. By affirmatively requesting that the court charge manslaughter in the second degree as a lesser included offense, defendant waived any claim of error in connection with the submission of that offense to the jury (see, People v. Shaffer, 66 N.Y.2d 663; People v. Ford, 62 N.Y.2d 275, 283; People v. Green, 205 A.D.2d 637, 638; People v. Terry, 180 A.D.2d 700; People v Ferguson, 178 A.D.2d 149, lv denied 79 N.Y.2d 919, 1000). Furthermore, were we to reach the merits, we would conclude that the evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), is sufficient to establish that defendant acted "recklessly" when he shot the unarmed victim in an effort to protect himself (Penal Law § 125.15).
Likewise, there is no merit to the contention that the prosecutor exercised her peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky ( 476 U.S. 79). Even assuming, arguendo, that defendant established a prima facie case of discrimination, the prosecutor gave a "satisfactory nondiscriminatory explanation" for excusing the jurors in question (People v. Hernandez, 75 N.Y.2d 350, 356, affd 500 U.S. 352; see, People v. Roberts, 204 A.D.2d 974, lv denied 84 N.Y.2d 871).