| People v Sydoriak |
| 2017 NY Slip Op 00671 [147 AD3d 791] |
| February 1, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyson Sydoriak, Appellant. |
Lynn W.L. Fahey, New York, NY (Alexis A. Ascher of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John Castellano, Johnnette Traill,and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered May 4, 2011, convicting him of attempted murder in the second degree, upon his pleaof guilty, and attempted robbery in the first degree (two counts), attempted robbery in the seconddegree, criminal possession of a weapon in the second degree, attempted criminal possession of acontrolled substance in the second degree, and attempted criminal possession of a controlledsubstance in the third degree, upon a jury verdict, and imposing sentence. By decision and orderdated August 27, 2014, this Court reversed the judgment, on the law, and ordered a new trial (see People v Sydoriak, 120 AD3d840 [2014]). On October 27, 2015, the Court of Appeals reversed the decision and order ofthis Court and remitted the matter to this Court for consideration of the facts and issues raised butnot determined on the appeal to this Court (see People v Sydoriak, 26 NY3d 1015 [2015]). Justice Rivera hasbeen substituted for former Justice Skelos and Justice Hinds-Radix has been substituted forformer Justice Lott (see 22 NYCRR 670.1 [c]).
Ordered that, upon remittitur from the Court of Appeals, the judgment is affirmed.
The defendant's Batson challenge (see Batson v Kentucky, 476 US 79 [1986])was properly denied, as he failed to make the requisite prima facie showing of discrimination. Itis incumbent upon a party making a Batson challenge to articulate and develop all of thegrounds supporting the claim, both factual and legal, during the colloquy in which the objectionis raised and discussed (see People v Childress, 81 NY2d 263, 268 [1993]; People v Valdez-Cruz, 99 AD3d738, 738-739 [2012]; People vScott, 70 AD3d 977 [2010]; People v Fryar, 29 AD3d 919 [2006]). In support of the Batsonapplication, the defendant noted only that the prosecutor used challenges against severalfemale prospective jurors. In the absence of a record demonstrating other circumstancessupporting a prima facie showing, the Supreme Court properly determined that the defendantfailed to establish a pattern of purposeful exclusion sufficient to raise an inference ofdiscrimination (see People v Valdez-Cruz, 99 AD3d at 738-739; People v Scott, 70 AD3d 977[2010]; People v Fryar, 29 AD3d919 [2006]). Since the defendant failed to establish a prima facie case of discrimination, thecourt did not err in failing to require the prosecutor to provide a gender-neutral explanation forher challenges to certain female prospective jurors (see People v Childress, 81 NY2d at268; People v Valdez-Cruz, 99 AD3d at 738-739; People v Scott, 70 AD3d 977 [2010]; People v Fryar, 29 AD3d 919[2006]; People v Thomas, 210 AD2d 515 [1994]).
[*2] The defendant's contention that the Supreme Court'shandling of certain jury notes violated the procedure set forth by the Court of Appeals inPeople v O'Rama (78 NY2d 270, 277-278 [1991]) is unpreserved for appellate review (see People v Morris, 27 NY3d1096, 1098 [2016]; People vNealon, 26 NY3d 152, 161-162 [2015]). Under the circumstances, we decline to reachthis contention in the exercise of our interest of justice jurisdiction (see People v Nealon,147 AD3d 784 [2017] [decided herewith]; People vBedeau, 129 AD3d 853, 853 [2015]). Rivera, J.P., Roman, Cohen and Hinds-Radix, JJ.,concur.