Opinion
748
April 16, 2002.
Judgment, Supreme Court, New York County (William Wetzel, J.), rendered September 5, 2000, convicting defendant, after a jury trial, of three counts of robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 25 years, unanimously affirmed.
ALICE WISEMAN, for respondent.
PAUL WIENER, for defendant-appellant.
Before: Andrias, J.P., Rosenberger, Lerner, Friedman, Marlow, JJ.
Although the prosecutor volunteered explanations for his peremptory challenges, the record clearly establishes that the basis for the court's denial of defendant's application made pursuant to Batson v. Kentucky ( 476 U.S. 79) was defendant's failure to make out a prima facie case of discrimination. Accordingly, the issue as to the sufficiency of the prima facie case is not moot (see, People v. Bowen, 286 A.D.2d 645; see also,People v. Bruton, 290 A.D.2d 231, 735 N.Y.S.2d 759), and we find that the record supports the court's determination (see, People v. Jenkins, 84 N.Y.2d 1001; People v. Childress, 84 N.Y.2d 1001). In any event, since defendant made no argument when the People explained their challenge to the prospective juror currently at issue, his present claim of pretext is unpreserved (see, People v. Allen, 86 N.Y.2d 101, 111), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the prosecutor's explanation, based on personal experience with persons employed in the same capacity as the panelist in question, was not pretextual (see, People v. Mancini, 219 A.D.2d 456, 457, lv denied 86 N.Y.2d 844).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.