           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

222
KA 05-02229
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAVONNE L. SCOTT, DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered June 14, 2005. The judgment
convicted defendant, upon a jury verdict, of manslaughter 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, following
a jury trial, of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that Supreme Court erred in denying his
Batson challenge. Defendant failed to object to the court’s procedure
for determining his Batson challenge and thus defendant failed to
preserve his contention for our review (see People v Parker, 304 AD2d
146, 156, lv denied 100 NY2d 585). Defendant also failed to preserve
for our review his contention that the court erred in denying his
motion for a mistrial based on juror misconduct. Although defendant
contends that the court failed to make a sufficient inquiry of the
other jurors with respect to the misconduct of the juror in question,
he failed to raise that issue in support of the motion (see generally
People v Torres, 80 NY2d 944, rearg denied 81 NY2d 784). We decline
to exercise our power to review those contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, the sentence is not unduly harsh or severe.




Entered:    February 18, 2011                      Patricia L. Morgan
                                                   Clerk of the Court
