Opinion
Submitted May 25, 1999
November 11, 1999
Appeal by the defendant from two judgments of the Supreme Court, Queens County (Rutledge, J.), both rendered December 13, 1995, convicting him of robbery in the first degree (two counts) and robbery in the second degree (three counts) under Indictment No. 838/94, and robbery in the first degree (three counts) and robbery in the second degree (two counts) under Indictment No. 3792/94, upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of those branches of the defendant's omnibus motion under both indictments which were to suppress physical evidence and statements made by him to the police.
Arza Rayches Feldman, Roslyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Roni C. Piplani of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgments are affirmed.
The hearing court properly denied suppression of the gun recovered from the car the defendant was driving since the police possessed probable cause to believe that the car contained evidence relating to a crime, thus rendering legal the search of the interior of the car without a search warrant (see, People v. Orlando, 56 N.Y.2d 441 ;People v. Matias, 251 A.D.2d 351 ).
The defendant's claim pursuant to Batson v. Kentucky ( 476 U.S. 79 ) premised on the prosecutor's use of peremptory challenges to strike eight black prospective jurors is not preserved for appellate review (see, People v. Allen, 86 N.Y.2d 101, 111 ; People v. Caston, 239 A.D.2d 355 ; People v. Steans, 174 A.D.2d 582 ). In any event, the absence of a complete record of the voir dire precludes any finding as to the defendant's establishment of a prima facie case of purposeful discrimination (see, People v. Williams, 260 A.D.2d 651 [2d Dept., Apr. 2 6, 1999]; People v. Campanella, 176 A.D.2d 813 ;People v. Morales, 126 A.D.2d 836 ).
The defendant's remaining contentions are unpreserved for appellate review, and, in any event, without merit.
BRACKEN, J.P., McGINITY and SCHMIDT, JJ., concur.
At the trial, the defense counsel made a prima facie showing that the prosecutor engaged in purposeful discrimination when he used peremptory strikes against prospective black jurors who, "because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution" (People v. Childress, 81 N.Y.2d 263, 267 ). Indeed, the court noted that it "had noticed [the prosecutor ] was selecting people of color predominantly" to challenge peremptorily.
In response to the defendant's Batson claim, the record revealed that scheduling difficulties may have justified the peremptory challenge of two of the black prospective jurors, and the defense counsel conceded that there was a race-neutral reason for excluding a third black prospective juror.
With respect to the four remaining black prospective jurors who were stricken, the prosecutor provided a race-neutral reason for striking only one of them, and no reasons were provided for challenging the prospective jurors Jerome B., Margaret H., and Renard M.
The court found that there was not "necessarily any purposeful discrimination", and directed the defense counsel not to "waste any more time" on additional argument. Accordingly, the defendant's claim pursuant to Batson v. Kentucky ( 476 U.S. 79 ) was properly preserved for appellate review (see, People v. Allen, 86 N.Y.2d 101, 111 ). Thereafter, the court asked the prosecutor his reason for excluding yet another black prospective juror, and denied the defendant's Batson claim yet again.
Once the prosecutor offered race-neutral reasons for the exercise of his peremptory challenges, and the court ruled on the ultimate question of intentional discrimination, the question of whether the defendant established a prima facie case became moot (see,People v. Payne, 88 N.Y.2d 172, 182 ), and the question before the trial court and this court is whether or not the race-neutral explanations provided were pretextual (see, People v. Payne, supra, at 181; People v. Manswell, 223 A.D.2d 561 ). Since no reasons are provided for the challenge to the prospective jurors Jerome B., Margaret H., and Renard M., the matter must be remitted to the Supreme Court, Queens County, for a hearing on the prosecutor's basis for challenging those jurors. If the prosecutor is unable to provide reasons for excluding even one black prospective juror, that failure in and of itself is dispositive of the Batson issue, since it is improper to exclude "even one member of a group for racial reasons" (People v. Childress, supra, at 267; People v. Manswell, supra; People v. Brown, 193 A.D.2d 611 ).