Opinion
June 17, 1996
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the cross appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509; CPL 450.20); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order is reversed, on the law, the defendant's motion to set aside the verdict on the count charging robbery in the second degree is denied, the jury verdict on that count is reinstated, and the matter is remitted to the Supreme Court, Kings County, for sentencing on that count.
In explaining his reasons for peremptorily challenging a particular juror, the defense counsel made reference to what he apparently saw to be a pattern of racial discrimination in the prosecution's use of its peremptory challenges. The record therefore indicates that the defense counsel's challenge to the juror in question was a response to what he believed to be racially-motivated challenges by the prosecution, and the Supreme Court properly denied the challenge (see, People v. Chambers, 80 N.Y.2d 519, 530; People v. Mondello, 191 A.D.2d 462, 463).
The Supreme Court erred in setting aside the verdict on the count charging robbery in the second degree. Contrary to the court's reasoning, robbery in the second degree as defined in Penal Law § 160.10 (1) is not an inclusory concurrent count of robbery in the first degree as defined in Penal Law § 160.15 (4) (see, CPL 300.30; Penal Law § 160.10; § 160.15 [3]; People v. Rodriguez, 141 A.D.2d 573; People v. Zada, 82 A.D.2d 926).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., Copertino, Santucci and Altman, JJ., concur.