Citation Numbers： 15 A.D.3d 415, 790 N.Y.S.2d 479, 2005 N.Y. App. Div. LEXIS 1387
Filed Date： 2/7/2005
Status： Precedential
Modified Date： 11/1/2024
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 Bat-son challenge (see Batson v Kentucky, 476 US 79 [1986]) 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 AD2d 305 [1998]; People v Steans, 174 AD2d 582 [1991]; People v Irizarry, 165 AD2d 715 [1990]). However, as we recently observed in People v Chin (3 AD3d 574 [2004]), 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 voire 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 AD2d 416 [2002]; People v Ramirez, 295 AD2d 542 [2002]; People v Campos, 290 AD2d 456 [2002]; People v Harris, 151 AD2d 961 [1989]). Nevertheless, the defendant’s present contention that the trial court should have declared a mistrial or granted him