Opinion
April 6, 1999
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Defendant's Batson claim was properly rejected. Since the prosecutor disclosed the race-neutral reasons for her peremptory challenges to the two prospective jurors in question, to wit, that they were whispering and laughing instead of paying attention to the proceedings, whereupon the court listened to defense counsel's arguments as to why these reasons were merely pretext for discrimination and then denied the Batson challenge, the court's ruling must be understood as a determination that the reasons proffered by the prosecutor for the challenges were not pretextual ( People v. Pena, 251 A.D.2d 26, lv denied 92 N.Y.2d 929). We see no reason to disturb that determination. The court's prior denial of the prosecutor's challenges for cause to these prospective jurors, made on the same grounds as subsequently provided for the peremptory challenges, does not undermine the court's finding of nonpretextuality because a nonpretextual reason need not rise to the level of a challenge for cause ( People v. Hernandez, 75 N.Y.2d 350, 357, affd 500 U.S. 352).
By making only general objections, defendant has failed to preserve her contention that the court erred in admitting into evidence a report from the New York City Criminal Justice Agency as a business record, where the report contained some inadmissible matter, and we decline to review it in the interest of justice. Were we to review this claim, we would find that although the challenged portions of the record should not have been admitted (CPLR 4518 [a]), the error was harmless ( see, People v. Edmonds, 251 A.D.2d 197, lv denied 92 N.Y.2d 924).
Defendant never requested a charge on circumstantial evidence and acceded to the court's stated inclination not to provide such charge. Accordingly, she has failed to preserve her contention that the court erred in failing to instruct the jury on circumstantial evidence and we decline to review it in the interest of justice. Were we to review this claim, we would find that such charge should have been provided, but that the absence of such charge was harmless ( People v. Brian, 84 N.Y.2d 887).
Concur — Rosenberger, J. P., Nardelli, Williams and Andrias.