PEOPLE v. FALKENSTEIN (2001)

 Defendant appeals from a judgment convicting him after a jury trial of conspiracy in the second degree (Penal Law § 105.15).   Supreme Court properly denied defendant's objection to the prosecutor's use of a peremptory challenge with respect to a prospective juror who was hearing-impaired.   While it is impermissible to exercise a peremptory challenge on the basis of race (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) or gender (see, J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89), no such prohibition applies to physical disabilities (see, United States v. Harris, 197 F.3d 870, 874-875, cert. denied 529 U.S. 1044, 120 S.Ct. 1546, 146 L.Ed.2d 358).  “Unlike race or gender, disability may legitimately affect a person's ability to serve as a juror” (United States v. Harris, supra, at 875).   Thus, a “state may use its peremptory challenges to strike [physically disabled prospective] jurors for any reason rationally related to the selection of an impartial jury” (United States v. Harris, supra, at 874).   Here, the prosecutor was concerned that the hearing impairment of the prospective juror would affect her ability to assess the audiotape evidence because, as noted by the prosecutor, the inflections of defendant's voice on the audiotapes were significant to the People's case.   While the prosecutor's concerns about the ability of the prospective juror to serve as a juror may not have warranted her dismissal for cause (see, People v. Guzman, 76 N.Y.2d 1, 4-5, 556 N.Y.S.2d 7, 555 N.E.2d 259), the concerns provided a legitimate basis for the exercise of the peremptory challenge (see, United States v. Harris, supra, at 876;  Jones v. State, 249 Ga.App. 327, 329, 548 S.E.2d 75, 77, cert. denied --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- [decided Sept. 7, 2001] ).

 Defendant's contention that the indictment is duplicitous is not preserved for our review (see, CPL 470.05[2];  People v. Bryan, 270 A.D.2d 875, 705 N.Y.S.2d 924, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150), and in any event is without merit.   A conviction of conspiracy in the second degree requires the commission of an overt act (see, Penal Law § 105.20), and here the People properly alleged three overt acts committed by defendant in a single count charging one offense (see, CPL 200.30[1];  People v. Heinzelman, 170 A.D.2d 841, 842, 567 N.Y.S.2d 180, lv. denied 77 N.Y.2d 995, 571 N.Y.S.2d 921, 575 N.E.2d 407).   Contrary to defendant's further contention, the court properly instructed the jury that defendant could be found guilty if he committed any one of the overt acts (see, People v. Charles, 61 N.Y.2d 321, 327-328, 473 N.Y.S.2d 941, 462 N.E.2d 118;  People v. Frascone, 271 A.D.2d 333, 707 N.Y.S.2d 155;  People v. Heinzelman, supra, at 842, 567 N.Y.S.2d 180).

 Defendant contends that his right to due process was denied because the police failed to make an electronic recording of his interrogation and confession.   We disagree.   There is no Federal or State due process requirement that interrogations and confessions be electronically recorded (see, People v. Owens, 185 Misc.2d 661, 662, 713 N.Y.S.2d 452;  see also, People v. Holt, 15 Cal.4th 619, 663-664, 63 Cal.Rptr.2d 782, 937 P.2d 213, 241-242, cert. denied 522 U.S. 1017, 118 S.Ct. 606, 139 L.Ed.2d 493).   Finally, defendant contends that he was denied a fair trial based on prosecutorial misconduct.   The majority of the instances of alleged misconduct are unpreserved for our review (see, CPL 470.05[2];  People v. Chavez-Flores, 259 A.D.2d 984, 688 N.Y.S.2d 860, lv. denied 94 N.Y.2d 821, 702 N.Y.S.2d 591, 724 N.E.2d 383), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a] ).   With respect to the errors that are preserved for our review, we conclude that they were not so egregious that defendant was denied a fair trial (see, People v. Chase, 265 A.D.2d 844, 846, 695 N.Y.S.2d 792, lv. denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985;  People v. Chavez-Flores, supra ).

Judgment unanimously affirmed.

MEMORANDUM: