Opinion
April 18, 1996
Appeal from the County Court of Sullivan County (Smith, J.).
On November 24, 1990, a disturbance or fight broke out in the vicinity of a tavern in the Village of Monticello, Sullivan County, requiring the assistance of the police to restore order. Defendant was one of the persons charged in a multicount indictment as a result of this incident. Following a jury trial, defendant was convicted of misdemeanor counts of inciting to riot and resisting arrest. This appeal followed.
Initially, we reject defendant's contention that he was denied equal protection as a result of the prosecutor's allegedly discriminatory exercise of a peremptory challenge ( see, Batson v Kentucky, 476 U.S. 79, 96-98). Specifically, defendant, who is African American, asserts that the prosecutor deliberately challenged the only African American in the jury panel. However, assuming, arguendo, that the challenge to the only African American prospective juror gave rise to an inference of discrimination, we find no reason to disturb County Court's determination that the prosecution met its resulting burden of coming forward with a race neutral explanation ( see, supra; see also, People v. Richardson, 193 A.D.2d 969, 971, lv denied 82 N.Y.2d 725). The prosecutor challenged the witness because, upon questioning, she seemed confused as to the burden of proof and stated at one point that the prosecutor would have to "absolutely" prove that any crime was committed. While the prospective juror later retracted this statement, we agree with County Court that defendant failed in his ultimate burden of establishing "purposeful discrimination" ( People v. Rodriguez, 211 A.D.2d 275, 278).
Finally, with respect to the prosecutor's remarks in summation, we note initially that defendant has waived review of most of his challenges by failing to object to them at trial ( see, People v Finkle, 192 A.D.2d 783, 788, lv denied 82 N.Y.2d 753). Further, County Court sustained the majority of the objections defendant did make and gave prompt curative instructions which eliminated any prejudice to defendant ( see, supra). In any event, our review of the challenged remarks indicates that while many of them were ill-chosen, they were not unduly prejudicial; therefore, reversal in the interest of justice or otherwise is not required in this case ( see, supra; see also, People v Bombard, 203 A.D.2d 711, 713, lv denied 84 N.Y.2d 823).
Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.