PEOPLE v. REDDING

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

The PEOPLE, etc., respondent, v. John REDDING, appellant.

Decided: June 28, 1999

LAWRENCE J. BRACKEN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. M. Sue Wycoff, New York, N.Y. (Henry R. Deutsch and Rosali Vazquez of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Victor Barall, and Ann Bordley of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Friedman, J.), rendered January 11, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During jury selection, the defendant objected, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to the prosecution's exercise of a peremptory challenge.   The trial court accepted the prosecution's explanation for the challenge and dismissed the juror.   On appeal, the defendant contends that the court erred in allowing the challenge.

 The defendant's contention, raised in his supplemental pro se brief, is unpreserved for appellate review.   The prosecution satisfied its obligation to provide a facially-neutral reason for rejecting the challenged juror (see, People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Allen, 86 N.Y.2d 101, 109-110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).   The burden then shifted to the defendant to demonstrate that the offered explanation was pretextual (see, People v. Payne, supra, at 181, 643 N.Y.S.2d 949, 666 N.E.2d 542).   The defendant did not object during jury selection to the prosecution's explanation regarding the subject juror, and did not articulate the claim he now makes on appeal (see, People v. Allen, supra, at 110-111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173;  People v. West, 243 A.D.2d 590, 665 N.Y.S.2d 289).   The defendant failed to meet his burden of demonstrating that the disputed challenge was the product of purposeful discrimination (see, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834;  Hernandez v. New York, 500 U.S. 352, 364-365, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Payne, supra).

 The defendant did not waive his rights pursuant to People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, to be present during a particular sidebar discussion with a prospective juror concerning the juror's background.   However, his contention that he was denied the right to be present at a material stage of the trial is not reviewable since he failed to make a sufficient record in this regard (see, People v. Maher, 89 N.Y.2d 318, 325, 653 N.Y.S.2d 79, 675 N.E.2d 833;  see also, People v. Kinchen, 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.

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