Opinion
March 13, 1998
Appeal from the Erie County Court, Drury, J. — Robbery, 2nd Degree.
Present — Pine, J. P., Wisner, Callahan, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of robbery in the second degree (Penal Law § 20.00, 160.10 Penal [1]) arising from his participation in the forcible theft of money from two victims who were collecting subscription fees from newspaper customers. At defendant's first trial, County Court received a note from the foreperson of the jury requesting that she be excused from further deliberations. Upon inquiry by the court, the juror asserted that she was emotionally unable to continue. Defense counsel did not object to the discharge of that juror but would not agree to her replacement with an alternate juror and further noted that, if the juror was discharged, defendant would request a mistrial. The court discharged the juror and declared a mistrial.
Defendant contends that his retrial was barred by double jeopardy because the court erred in discharging a deliberating juror in the first trial. We disagree. Defendant did not object to the manner in which the court investigated whether the sworn juror should be discharged (see, CPL 270.35) and thus did not preserve for our review his contention that the court's inquiry was insufficient (see, People v. Albert, 85 N.Y.2d 851, 852; People v. Howze, 239 A.D.2d 895, lv denied 90 N.Y.2d 940; People v. Martinez, 224 A.D.2d 326, lv denied 88 N.Y.2d 989). In addition, defense counsel did not object to the discharge of the juror and expressly requested a mistrial. Therefore, defendant's retrial was not barred by double jeopardy (see, Matter of Davis v. Brown, 87 N.Y.2d 626, 630).
The record does not support defendant's further contention that the prosecutor exercised his peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky ( 476 U.S. 79). Defendant failed to meet his burden of establishing that the prosecutor unlawfully exercised his peremptory challenge to excuse an African-American juror (see, People v. Childress, 81 N.Y.2d 263, 267). Even assuming, arguendo, that defendant established a prima facie case of discrimination, the prosecutor gave a "satisfactory nondiscriminatory explanation" for excusing the juror (People v. Hernandez, 75 N.Y.2d 350, 356, affd 500 U.S. 352; see, People v. Alvarado, 213 A.D.2d 1013, lv denied 86 N.Y.2d 732).
The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).