PEOPLE v. BUTLER (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered January 14, 2003, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in or near school grounds (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Ordinarily, when a defendant raises a contemporaneous Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) to the prosecutor's alleged use of a racially-discriminatory peremptory challenge, the appropriate remedy is to strike the challenge and seat the juror (see People v. Dancy, 247 A.D.2d 305, 668 N.Y.S.2d 465;  People v. Steans, 174 A.D.2d 582, 571 N.Y.S.2d 85;  People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279).   However, as we recently observed in People v. Chin, 3 A.D.3d 574, 771 N.Y.S.2d 158, when a defendant delays in raising a Batson challenge until subsequent rounds of voir dire after the relevant jurors have been excused, the defendant limits the remedies available to the trial court.

 Here, insofar as is relevant, at the conclusion of round three of voir dire, the defendant challenged the peremptory removal of two black females from round two.   Recognizing that neither juror could be seated at that time, the trial court determined that the defendant's application was untimely.   However, as a Batson claim may be raised at any time during the jury selection process, the application was timely (see People v. Battle, 299 A.D.2d 416, 749 N.Y.S.2d 571;  People v. Ramirez, 295 A.D.2d 542, 744 N.Y.S.2d 683;  People v. Campos, 290 A.D.2d 456, 736 N.Y.S.2d 108;  People v. Harris, 151 A.D.2d 961, 542 N.Y.S.2d 411).   Nevertheless, the defendant's present contention that the trial court should have declared a mistrial or granted him additional peremptory challenges is unpreserved for appellate review as he never requested this or any relief from the trial court (see People v. Smith, 81 N.Y.2d 875, 597 N.Y.S.2d 633, 613 N.E.2d 539;   People v. Fuller, 302 A.D.2d 405, 753 N.Y.S.2d 902;  People v. Francis, 287 A.D.2d 396, 731 N.Y.S.2d 706;  People v. McLeod, 281 A.D.2d 325, 722 N.Y.S.2d 507;  People v. Smith, 226 A.D.2d 566, 641 N.Y.S.2d 550;  People v. McCargo, 226 A.D.2d 480, 641 N.Y.S.2d 322).   In any event, reversal is not warranted in the exercise of our interest of justice jurisdiction.