Opinion
November 12, 1999
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Murder, 1st Degree.
PRESENT: GREEN, J. P., LAWTON, HAYES, HURLBUTT AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that Supreme Court committed reversible error in discharging a sworn juror as unavailable for continued service. The juror was discharged with the consent of defense counsel (see, People v. Joy, 206 A.D.2d 440, lv denied 84 N.Y.2d 869). Defendant failed to preserve for our review his contention that the court inadequately responded to the jury's request for a readback of the testimony of two prosecution witnesses (see, CPL 470.05; People v. Goldbeck, 218 A.D.2d 670, lv denied 87 N.Y.2d 846; People v. Figueroa, 216 A.D.2d 408, 409, lv denied 88 N.Y.2d 847; People v. Mitchem, 195 A.D.2d 1038, 1040, lv denied 82 N.Y.2d 723), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). With respect to defendant's Batson objection to the prosecutor's exercise of a peremptory challenge (see, Batson v. Kentucky, 476 U.S. 79), the record establishes that the prosecutor gave a race-neutral reason for excluding the potential juror, and we see no basis to disturb the court's determination that the reason given was not pretextual (see, People v. Rivera, 225 A.D.2d 392, 393, lv denied 88 N.Y.2d 969). Defendant's remaining contention is without merit.