Opinion
393
March 5, 2002.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered April 19, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds (2 counts), criminal sale of a controlled substance in the third degree (2 counts), and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.
Grace Vee for respondent.
Susanna De La Pava for defendant-appellant.
Before: Mazzarelli, J.P., Ellerin, Lerner, Rubin, Marlow, JJ.
Defendant's application pursuant to Batson v. Kentucky ( 476 U.S. 79) was properly denied. The record supports the court's finding that the prosecutor's demeanor-based explanation for challenging the juror in question was not pretextual, a finding that is entitled to great deference (People v. Garraway, 284 A.D.2d 262, lv denied 97 N.Y.2d 656). Defendant's challenge to the procedure employed by the court in making its Batson ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly exercised its discretion in affording the People an opportunity to expand upon their reasons for exercising the peremptory challenge.
The court properly discharged a sworn juror who had failed to disclose a medical condition that had an impact on her ability to concentrate and who had also failed to disclose her sister's boyfriend's drug-related conviction and the fact that its similarity to the case on trial was causing emotional distress affecting her ability to serve (see, People v. Richards, 267 A.D.2d 18, lv denied 94 N.Y.2d 883; People v. Tamayo, 256 A.D.2d 98, lv denied 93 N.Y.2d 979; People v. Miller, 247 A.D.2d 208).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.