THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAVONNE SCOTT DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAVONNE L. SCOTT, DEFENDANT-APPELLANT.

KA 05-02229

Decided: February 18, 2011

PRESENT:  CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ. MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him, following a jury trial, of manslaughter in the first degree (Penal Law § 125.20[1] ), defendant contends that Supreme Court erred in denying his Batson challenge.   Defendant failed to object to the court's procedure for determining his Batson challenge and thus defendant failed to preserve his contention for our review (see People v. Parker, 304 A.D.2d 146, 156, lv denied 100 N.Y.2d 585).   Defendant also failed to preserve for our review his contention that the court erred in denying his motion for a mistrial based on juror misconduct.   Although defendant contends that the court failed to make a sufficient inquiry of the other jurors with respect to the misconduct of the juror in question, he failed to raise that issue in support of the motion (see generally People v. Torres, 80 N.Y.2d 944, rearg. denied 81 N.Y.2d 784).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court