Opinion
January 29, 1996
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is affirmed.
The defendant raises Batson issues ( see, Batson v Kentucky, 476 U.S. 79) regarding the People's peremptory challenges to six black prospective jurors. Even assuming that the defendant established a prima facie showing that the prosecution had exercised its peremptory challenges in a discriminatory manner, we find no impropriety in the trial court's finding that the prosecutor's explanations for the peremptory challenges in question were racially neutral and not pretextual ( see, People v Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352).
Contrary to the defendant's contention, the trial court did not improvidently exercise its discretion by discharging a juror who was sick and replacing him with the first alternate juror. The court's on-the-record telephone conversation with the discharged juror supports its conclusions that, notwithstanding the juror's statement that he would attempt to return to court the following day, he probably would not be well enough to serve and he might infect the other jurors. In light of these and other circumstances, including a prior adjournment because of another sick juror, the discharge of the juror does not warrant reversal ( see, People v Page, 72 N.Y.2d 69, 73; see also, People v Ortiz, 194 A.D.2d 313). Bracken, J.P., Altman, Hart and Goldstein, JJ., concur.