PEOPLE v. BRYANT (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered June 3, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The racially-motivated use of peremptory challenges violates the Equal Protection Clause of both the State and Federal Constitutions whether they are made by the defense or the prosecution (see, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235).   Here, after the prosecutor argued that the defense counsel was using his peremptory strikes to exclude white jurors from the panel, the defense counsel proffered race-neutral explanations for the challenges.   The trial court rejected these proffered explanations as pretextual and seated two challenged jurors over the defense counsel's objection.   Viewing the totality of the circumstances (see, Hernandez v. New York, supra), especially considering that the defense counsel failed to challenge many other similarly-situated non-white jurors (see, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542), there is no basis upon which to overturn the trial court's determination, which is to be given great deference on appeal (see, Hernandez v. New York, supra;  People v. Garcia, 239 A.D.2d 599, 658 N.Y.S.2d 365), that the explanations proffered were merely pretextual.

 The defendant's contention that reversal is required because the People failed to turn over alleged Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), namely a short, handwritten paragraph of coded information contained in the undercover police officer's memobook, is unpreserved for appellate review (see, People v. Rashid, 164 A.D.2d 951, 952, 560 N.Y.S.2d 58), and, in any event, is without merit.

MEMORANDUM BY THE COURT.