Opinion
October 2, 1998
Appeal from the Supreme Court, Erie County, Doyle, J. — Robbery, 1st Degree.
Present — Pine, J. P., Hayes, Wisner, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of robbery in the first degree (Penal Law § 160.15), defendant contends that Supreme Court erred in granting the prosecutor's request, made at the close of the People's proof, to amend the indictment to add the term "or shotgun" after "tire iron" as the dangerous instrument used in the course of the robbery. We disagree. The amendment was timely ( see, CPL 200.70; see. also, People v. Mendez, 209 A.D.2d 547, lv denied 84 N.Y.2d 1013) and did not change or expand the theory of the People's case that defendant struck the victim with a dangerous instrument ( see, People v. Jackson, 232 A.D.2d 193, lv denied 89 N.Y.2d 924; cf., People v. Powell, 153 A.D.2d 54, lv denied 75 N.Y.2d 969), nor did it "otherwise tend to prejudice the defendant on the merits" (CPL 200.70).
The court did not err in denying defendant's motion to set aside the verdict on the ground of juror misconduct ( see generally, People v. Brown, 48 N.Y.2d 388, 393-394; cf., People v. Dashnau, 187 A.D.2d 966, 966-967, lv denied 81 N.Y.2d 838). Defendant's contention that reversal is required because of a Batson violation ( see, Batson v. Kentucky, 476 U.S. 79) is not preserved for our review because defense counsel did not object until after the jurors, including the alternates, were sworn ( see, People v. Williams, 206 A.D.2d 917, lv denied 84 N.Y.2d 911). In any event, that contention lacks merit. Although defendant met his initial burden of establishing a prima facie case of discrimination, the prosecutor came forward with nonpretextual, racially neutral reasons for using peremptory challenges to exclude two African-American members of the jury panel ( see, People v. Williams, supra).