Opinion
2001-05071.
Decided January 26, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.), rendered May 29, 2001, convicting him of criminal sale of marijuana in the third degree and criminal sale of marijuana in the fourth degree (three counts), upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Tonya Plank of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Jessica L. Melton of counsel), for respondent.
Before: DANIEL F. LUCIANO and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
During the second round of jury selection, defense counsel raised a Batson objection ( Batson v. Kentucky, 476 U.S. 79), claiming that the prosecutor was using his peremptory challenges to systematically exclude both black and Hispanic persons from the jury. After determining that the defendant established a prima facie case of discrimination, the trial court required the prosecutor to offer race-neutral reasons for striking one black and two Hispanic prospective jurors in the first round of jury selection, and one Hispanic prospective juror in the second round. The trial court subsequently ruled that the explanation provided by the prosecutor for striking an Hispanic prospective juror during the first round of selection was pretextual, and that the defendant was entitled to a remedy. However, since the subject juror had already been excused and was no longer available for service, the trial court concluded that granting the defense one additional peremptory challenge would be an appropriate remedy.
On appeal, the defendant contends that granting him one additional peremptory challenge was an inadequate remedy for the Batson violation found by the trial court. We disagree. Although a defendant may raise a Batson claim at any point during the jury selection process ( see People v. Battle, 299 A.D.2d 416; People v. Ramirez, 295 A.D.2d 542; People v. Campos, 290 A.D.2d 456; People v. Harris, 151 A.D.2d 961), by making his challenge after the first round jurors had already been excused, the defendant limited the remedies available to the trial court. Where, as here, disallowing an improper challenge and seating the subject juror is not a feasible option because the juror has been released from service, several courts have recognized that granting additional peremptory challenges to the defendant may be an acceptable remedy ( see McCrory v. Henderson, 82 F.3d 1243; Koo v. McBride, 124 F.3d 869; Caston v. Costello, 74 F. Supp.2d 262) . "Bearing in mind that the Batson court specifically `declined to express any view on what appropriate action a trial court should take in the event the prosecution failed to rebut a defendant's prima facie showing of racial discrimination in the use of peremptory challenges'" ( People v. Frye, 191 A.D.2d 581, quoting Batson v. Kentucky, supra at 99 n 24), we find that the trial court's remedy of granting the defendant an additional peremptory challenge was proper, and afforded the defendant his right to equal protection.
SMITH, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.