Opinion
June 3, 1991
Appeal from the Supreme Court, Queens County (Naro, J.).
Ordered that the judgments are affirmed.
The defendant contends that the prosecutor used his peremptory challenges in a racially exclusive manner against blacks in violation of the holding of Batson v Kentucky ( 476 U.S. 79). While the defendant initially objected to the prosecutor's use of peremptory challenges during voir dire, in the colloquy that followed the defendant did not press the issue further by moving for a mistrial. Nor did the defendant object to the court's corrective action of asking the prosecutor to provide a race-neutral explanation for his challenges and disallowing one of the prosecutor's challenges and seating a black person on the jury. Thus, we find that the issue of law is not preserved for appellate review (see, CPL 470.05; People v Rosado, 166 A.D.2d 544). However, we have reviewed the issue in the exercise of our interest of justice jurisdiction and find that the court's prompt action in asking the prosecutor to provide a race-neutral explanation for his challenges and disallowing one of the prosecutor's challenges and seating a black person on the jury was the appropriate remedy to employ. Therefore, a new trial is not warranted (see, People v Irizarry, 165 A.D.2d 715).
We also reject the defendant's contention that the hearing court improperly conducted a portion of the suppression hearing in his absence. Defense counsel expressly requested, for tactical reasons, that his client's presence be waived and the court, initially reluctant to grant the request, agreed to that procedure only after defense counsel's urging. Under such circumstances it is spurious for the defendant to now claim that his rights were prejudiced by his absence from that portion of the hearing (see, People v Peterson, 151 A.D.2d 512; People v Stoute, 140 A.D.2d 728).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit. Kooper, J.P., Harwood, Rosenblatt and Ritter, JJ., concur.