OPINION OF THE COURT
Following a retrial, defendant was again convicted by a jury of felony murder, robbery in the first degree, criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the fourth degree. The convictions stem from an incident summarized in a decision of this Court on defendant’s prior appeal in which a new trial was ordered due to certain trial errors (42 AD3d 662 [2007]). The evidence at trial established that defendant fatally stabbed Jason Battaglia on March 14, 2002 outside of an apartment building in the City of Schenectady, Schenectady County in a dispute over a drug sale. Upon his convictions, County Court imposed an aggregate sentence of 25 years to life in prison, with five years of post-release supervision. Defendant now appeals.
Initially, defendant, who is black, contends that his right to equal protection of the laws was violated when County Court denied his Batson objections (see Batson v Kentucky, 476 US 79 [1986]) to the People’s exercise of peremptory challenges to
During the third round of jury selection, defendant again raised a Batson objection after the People exercised a peremptory challenge to strike the only remaining black person on the panel, juror No. 11. At County Court’s direction, the prosecutor elucidated that the District Attorney’s office had prosecuted her
Under the three-step test formulated under Batson and its progeny to determine whether peremptory challenges are being employed as a tool of invidious discrimination, the party challenging the use of peremptories must make out a prima facie case of purposeful discrimination and, if accomplished, the nonmovant must come forward with race-neutral reasons for each of the peremptories challenged; “once race-neutral reasons are given, the inference of discrimination is overcome” (People v Smocum, 99 NY2d 418, 422 [2003]). “The third step of the Bat-son inquiry requires the trial court to make an ultimate [factual] determination on the issue of discriminatory intent based on all of the facts and circumstances presented . . . focused on the credibility of the race-neutral reasons” (id. at 422 [emphases added]).
The first prong is not in issue. Where, as here, “a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot” (Hernandez v New York, 500 US 352, 359 [1991]; see People v Smocum, 99 NY2d at 423; People v Fulton, 24 AD3d 959, 962 [2005], Iv denied 6 NY3d 847 [2006], cert denied 549 US 1037 [2006]). As to the second prong of the analysis, a neutral explanation in this context is “an explanation based on something other than the race of the juror” and “the issue is the facial validity of the prosecutor’s explanation” (Hernandez v New York, 500 US at 360). The reasons need not be “persuasive, or even plausible” to others (Purkett v Elem, 514 US 765, 768 [1995]; see People v Morgan, 24 AD3d 950, 951 [2005], Iv denied 6 NY3d 815 [2006]) and may be “ill-founded” (People v Allen, 86 NY2d 101, 109 [1995]), so long as they do not violate equal protection (see id.; see also Purkett v Elem, 514 US at 769; Hernandez v New York, 500 US at 359). Here, discriminatory intent was not inherent in any of the prosecutor’s explanations, and County Court correctly determined that all of the reasons were, in fact, entirely race-neutral and overcame any inference of discrimination (see Purkett v Elem, 514 US at 768).
Thus, we turn to the third and final prong, the trial court’s “difficult burden of assessing prosecutors’ motives” (Batson v
County Court expressly believed that all of the prosecutor’s stated reasons were genuine and not pretextual, and we discern no basis upon which to disagree with that firsthand factual finding. As to juror No. 81, defendant never argued that the reason given for her exclusion — she oversaw the educational program for the victim’s mother — was pretextual and, thus, that claim is unpreserved (see People v James, 99 NY2d 264, 271-272 [2002]). By not responding to the reason given, defense counsel did not meet his burden of showing pretext (see People v Skervin, 13 AD3d 661, 662 [2004], Iv denied 5 NY3d 833 [2005]). Likewise, the prosecutor’s exercise of a peremptory challenge as to juror No. 11 based upon the good faith belief that he had prosecuted several relatives with the same name, including siblings (and that she may have been evasive), has, when credited, been found to be not racially motivated (see People v Morgan, 24 AD3d at 951; People v Walker, 285 AD2d 660, 664 [2001] , Iv denied 97 NY2d 659 [2001], cert denied 535 US 1064 [2002] ). County Court’s conclusion that this explanation was reasonable and nonpretextual is fully supported and will not be disturbed.
With regard to juror No. 224, contrary to defendant’s claims, we cannot conclude that the prosecutor’s intuitive sense that a person who cites Bible reading as her free time activity might favor forgiveness over judgment/conviction is implausible, irrational, fantastic, unconvincing, incredible, suspicious or clearly erroneous (see Snyder v Louisiana, 552 US 472, 477-485 [2008]; Purkett v Elem, 514 US at 768) or that it “does not hold
We next turn to defendant’s claim that County Court improperly denied his for-cause challenge to prospective juror No. 197, causing him to peremptorily challenge this juror and exhaust his peremptory challenges before completion of jury selection (see CPL 270.20 [2]). During questioning of jurors by defense counsel regarding their ability to render a verdict based upon the evidence rather than emotion, juror No. 197 indicated that she “may have a problem” as she is a “pretty emotional person” but would “try [her] hardest to be . . . objective and to be fair.” However, upon further questioning, she provided assurance that her logic and not her emotions would guide her verdict, thereby providing the requisite “unequivocal assurance of impartiality” (People v Arnold, 96 NY2d 358, 364 [2001]; see People v Chambers, 97 NY2d 417, 419 [2002]; People v Johnson, 94 NY2d 600, 612-614 [2000]). Thus, viewing the record of voir dire as a whole, we find no abuse of discretion in the court’s denial of defendant’s challenge for cause (see People v DeDeo, 59 AD3d 846, 848 [2009], Iv denied 12 NY3d 782 [2009]).
Defendant further ascribes error to County Court’s dismissal, on day two of jury selection, of a sworn juror (No. 3), after the court was advised2 by that juror in a telephone call that her father-in-law had passed away about one hour earlier and no funeral arrangements had yet been made. When questioned by defense counsel, the juror guessed that she might be unavailable for three days. Defendant is correct
Finally, the introduction of the testimony of Cecelia Simmons from the first trial did not violate either defendant’s right to confrontation or CPL 670.10, which codifies a hearsay exception for prior testimony of an unavailable witness (see Barber v Page, 390 US 719, 722 [1968]; People v Arroyo, 54 NY2d 567, 569-574 [1982]; People v Spencer, 219 AD2d 259, 264 [1996], Iv denied 88 NY2d 1024 [1996]; People v Muccia, 139 AD2d 838, 839 [1988]). When called to testify at the second trial as an eyewitness, Simmons — defendant’s partner in this drug sale who pleaded guilty to murder in the second degree pursuant to a plea agreement requiring her to testify at defendant’s trial — only briefly cooperated and then recanted or seemingly contradicted parts of her prior testimony, intermittently refusing to testify. After her testimony was adjourned and counsel appointed to represent her, she refused to testify and was held in contempt. Under these circumstances, her refusal to testify made her unavailable and constituted “incapacity” under CPL 670.10 (1), and her testimony at the first trial, at which she was extensively cross-examined, was properly admitted at this trial following the protracted good faith efforts to induce her to testify in person (see People v Whitley, 14 AD3d 403, 404-405 [2005], Iv denied 4 NY3d 892 [2005]; People v Barber, 2 AD3d 1290,
Lahtinen, Kavanagh, Stein and Garry, JJ., concur.
Ordered that the judgment is affirmed.
1.
Notably, defendant did not raise a religion-based Batson objection to the strike against juror No. 224 (cf. United States v Brown, 352 F3d 654 [2d Cir 2003]; United States v DeJesus, 347 F3d 500 [3d Cir 2003], cert denied 541 US 1086 [2004]; United States v Seals, 987 F2d 1102 [5th Cir 1993], cert denied 510 US 853 [1993]; Haile v State, 672 So 2d 555 [Fla Dist Ct App 1996]) or argue (or tender any proof) that the exclusion of Bible-reading individuals has a disparate impact on black potential jurors (see Hernandez v New York, 500 US at 363; Washington v Davis, 426 US 229, 242 [1976]; United States v DeJesus, supra). The United States Supreme Court has not yet ruled on whether Batson extends to religion-based peremptory challenges (see Davis v Minnesota, 511 US 1115, 1115 [1994]; see also Miller-El v Dretke, 545 US at 270 [Breyer, J., concurring]).
2.
The juror had just reported the death in her family to the Commissioner of Jurors.
3.
Although County Court twice correctly cited CPL 270.15, it read CPL 270.35 aloud and neither party objected thereto although given an opportunity to be heard. Thus, defendant’s contention that there was reliance on the incorrect statute is unpreserved for our review. In any event, any error was harmless.