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People v. Barber

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 20, 1989
156 A.D.2d 1022 (N.Y. App. Div. 1989)

Summary

holding that "[d]efendant's objection to the exercise of peremptory challenges against two prospective black jurors was untimely because the objection was made after all of the jurors, including the alternates, were sworn"

Summary of this case from Green v. Travis

Opinion

December 20, 1989

Appeal from the Supreme Court, Erie County, Marshall, J.

Present — Boomer, J.P., Green, Pine, Lawton and Davis, JJ.


Judgment unanimously affirmed. Memorandum: Defendant's objection to the exercise of peremptory challenges against two prospective black jurors was untimely because the objection was made after all of the jurors, including the alternates, were sworn (see, People v Harris, 151 A.D.2d 961). Moreover, defense counsel did not move for a mistrial or request any other relief but only "noted" his objection "for whatever purpose that might be used for at some point". Having failed to move for any relief, defense counsel has not preserved the issue for appellate review. Were we to reach the merits, we would affirm.

Under all of the circumstances, including the explanation given by the prosecutor for the exercise of his peremptory challenges, defense counsel did not sustain his ultimate burden of proving purposeful discrimination (see, Batson v Kentucky, 476 U.S. 79, 98). The prosecutor explained that he exercised his challenges against the two black persons because they were unmarried and one was a nonhomeowner. In this case, involving a crime against property, the prosecutor had a reason for attempting to select homeowners and others who might own substantial property. Although defense counsel noted that there were other nonhomeowners on the jury "panels", he did not show that nonhomeowners had been accepted as jurors. We have examined the defendant's other contentions and find that none requires reversal.


Summaries of

People v. Barber

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 20, 1989
156 A.D.2d 1022 (N.Y. App. Div. 1989)

holding that "[d]efendant's objection to the exercise of peremptory challenges against two prospective black jurors was untimely because the objection was made after all of the jurors, including the alternates, were sworn"

Summary of this case from Green v. Travis

holding Batson challenge untimely because objection made after all jurors were sworn

Summary of this case from Epps v. Commissioner of Correctional Services
Case details for

People v. Barber

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CURTIS BARBER…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 20, 1989

Citations

156 A.D.2d 1022 (N.Y. App. Div. 1989)

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