People v. Alomar

—Judgment, 220 Supreme Court, Bronx County (Ira Globerman, J.), rendered January 19, 1990, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, affirmed. Upon examination of the entire record, we conclude that defendant failed to establish a prima facie violation of Batson v Kentucky (476 US 79), and that the People were therefore not required to explain their use of a portion of their peremptory challenges to strike Hispanic venirepersons (see, People v Jenkins, 84 NY2d 1001, 1003; People v Childress, 81 NY2d 263, 267). The original Trial Judge properly presided over the reconstruction hearing and thus the defendant’s recusal motion was properly denied. Contrary to the dissent’s characterization of the Trial Judge as a witness to the original voir dire proceedings, it is settled that, with regard to the procedure to be followed in reconstructing the record, “so far as possible the final arbiter of the record should be the Judge who presided at the original proceeding sought to be reviewed, if he is available * * * In such a proceeding he is not merely, or not at all, a witness; he is the official who certifies to the appellate court—if he can—what took place before him” (People v Carney, 73 AD2d 9, 12, revd on other grounds 58 NY2d 51; People v Butler, 75 AD2d 754). By failing to apprise the court that its no adverse inference charge went beyond the charge requested by defendant, or otherwise express any dissatisfaction with the charge, defendant has failed to preserve his present claims (People v Hoke, 62 NY2d 1022; People v Whalen, 59 NY2d 273, 280), and we decline to review them in the interest of justice (see, People v Autry, 75 NY2d 836). Defendant’s claims regarding the court’s “two inferences” charge and its charge on asking the jury to come to an agreement “which speaks the truth” are unpreserved and, in any event, would not require reversal (People v Arredondo, 226 AD2d 322, 323, lv denied 88 NY2d 964). Concur—Wallach, Mazzarelli and Andrias, JJ.