The People of the State of New York, Respondent, v. Nelson Lewis, Jr., Appellant

The People of the State of New York, Respondent, v Nelson Lewis, Jr., Appellant. (Appeal No. 1.) [744 NYS2d 738] [MAJORITY] —Appeal from a judgment of Supreme Court, Monroe County, (Mark, J.), entered October 29, 1999, convicting defendant after a jury trial of, inter alia, murder in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25 [3]), robbery in the first degree (three counts) (§ 160.15 [1], [2], [4]) and robbery in the second degree (§ 160.10 [1]). Supreme Court properly rejected defendant’s Batson claim with respect to the prosecutor’s peremptory challenges to two potential jurors. We conclude that the prosecutor provided race-neutral reasons for excluding the two potential jurors (see People v Payne, 88 NY2d 172, 181). To the limited extent that the contention of defendant that he was deprived of a fair trial because of the cumulative effects of the multiple jury trial is preserved for our review, that contention is premised upon speculation alone and thus provides no basis for reversal (see People v Irizarry, 193 AD2d 815, 815, affd 83 NY2d 557). To the extent that defendant’s contention is not preserved for our review (see CPL 470.05 [2]), we decline to exercise our power to review it as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Defendant further contends that the court erred in failing to ask defendant at trial whether he wished to testify. We reject that contention (see United States v Janoe, 720 F2d 1156, 1161, cert denied 465 US 1036; see also People v Doe, 186 AD2d 1036, 1036, lv denied 81 NY2d 788). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). Defendant’s remaining contention is not preserved for our review (see 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present—Pigott, Jr., P.J., Pine, Wisner, Scudder and Lawton, JJ.