| People v Holloway |
| 2010 NY Slip Op 02302 [71 AD3d 1486] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Chad T.Holloway, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), renderedJanuary 25, 2007. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, burglary in the first degree and attempted robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,murder in the second degree (Penal Law § 125.25 [3]), defendant contends that theprosecutor's reason for excluding two prospective jurors in response to his Batsonchallenge, i.e., that individuals who work in the field of education tend to be more "forgiving,"was pretextual because the prospective jurors' employment did not relate to the facts of this case.Defendant did not challenge the prosecutor's reason for excluding those prospective jurors onthat ground, and he therefore failed to preserve his contention for our review (see People v Cooley, 48 AD3d1091, 1092 [2008], lv denied 10 NY3d 861 [2008]; People v Brown, 295AD2d 442 [2002], lv denied 98 NY2d 729 [2002], 99 NY2d 580 [2003]). In any event,we conclude that defendant's contention is without merit. Supreme Court properly determinedthat the prosecutor provided a race-neutral explanation for excluding the prospective jurors (see People v Thompson, 59 AD3d1115, 1117 [2009], lv denied 12 NY3d 852, 860 [2009]).
We further conclude that the court properly denied defendant's request for an adverseinference charge. Defendant requested that charge based on the failure of the police to record hisinterrogation electronically. "[T]his Court has repeatedly determined[, however,] that the failureto record a defendant's interrogation electronically does not constitute a denial of due process"(People v Malave, 52 AD3d1313, 1315 [2008], lv denied 11 NY3d 790 [2008]; see People v Lomack, 63 AD3d1658 [2009], lv denied 13 NY3d 798 [2009]; People v Mendez, 50 AD3d 1526 [2008], lv denied 11NY3d 739 [2008]), and thus an adverse inference charge was not warranted (see People v Hammons, 68 AD3d1800 [2009]; People v Mastin, 261 AD2d 892, 894-895 [1999], lv denied 93NY2d 1022 [1999]). Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.