People v. Smalls

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered August 10, 1995, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the trial court properly rejected his peremptory challenge to a certain prospective juror. After correctly sustaining the People’s objections based upon the prima facie showing that the defense counsel was using his peremptory challenges in a racially-discriminatory manner, the court asked the defense counsel for his reason for peremptorily challenging this juror (see, People v Payne, 88 NY2d 172). The defense counsel reported that the defendant “had no real objection to [the subject juror]. He (the defendant) was really [re] acting to her age more than anything else”. The court disallowed the defendant’s challenge to that juror.

The record is sufficient to permit us to infer a finding of pretext as to the subject juror (see, People v Wint, 237 AD2d 195; People v Jackson, 236 AD2d 628). Indeed, while age is, facially, a race-neutral reason for a peremptory challenge to a juror, an explanation based upon age can become pretextual if it bears no relationship to the facts of the case (see, People v McMichael, 218 AD2d 671; see also, People v Garrastazu, 238 AD2d 354), or if other jurors of a similar age are not objected to on that ground (see, People v Dalhouse, 240 AD2d 420; People v Vega, 239 AD2d 615). Here, the court’s implicit finding of pretext is amply supported by the record (see, People v Santana, 235 AD2d 265; see also, People v Delgado, 233 AD2d 338; *496People v Fennell, 231 AD2d 475). Therefore, the court’s Batson determination need not be disturbed.

We have reviewed the defendant’s remaining contentions and find them to be without merit. Miller, J. P., Ritter, Pizzuto and Altman, JJ., concur.