MEMORANDUM AND ORDER
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 after a jury trial of murder in the second degree (Penal Law § 125.25) and robbery in the first degree (§ 160.15 [1]). We reject the contention of defendant that County Court erred in refusing to suppress physical evidence seized from the apartment where defendant was ultimately arrested. Defendant had no reasonable expectation of privacy in that apartment and thus the court properly determined that he lacked standing to contest the warrantless search of the premises ( see People v. Fields, 294 A.D.2d 916; People v. Maye, 206 A.D.2d 755, 757, lv denied 84 N.Y.2d 1035). In any event, as the court properly determined in the alternative, the tenant of the apartment gave the police "tacit consent to the officers' entry by her conduct" ( People v. Washington, 209 A.D.2d 817, 819, lv denied 85 N.Y.2d 944). The court also properly refused to suppress the statement made by defendant to the police at the time of his arrest. Contrary to the contention of defendant, the information acquired by the police prior to his arrest was "sufficient to support a reasonable belief that an offense ha[d] been * * * committed" ( People v. Bigelow, 66 N.Y.2d 417, 423), and thus the police had probable cause to arrest him.
We further reject the contention of defendant that the court erred in denying his Batson challenge. The prosecutor explained that his exercise of a peremptory challenge to the only black prospective juror was based on his concern that she had not answered questions truthfully, and thus we conclude that the court did not abuse its discretion in determining that the prosecutor's explanation was race-neutral ( see generally Batson v. Kentucky, 476 U.S. 79, 97-98; People v. Allen, 86 N.Y.2d 101, 104; People v. Shongo, 288 A.D.2d 920, lv denied 97 N.Y.2d 733). Defendant waived his present challenge to the racial composition of the panel of prospective jurors by failing to raise that challenge before the commencement of jury selection ( see CPL 270.10; People v. Hammock, 255 A.D.2d 957, 957, lv denied 93 N.Y.2d 899; cf. People v. Balian, 49 A.D.2d 94, 98). Defendant further contends that the evidence is legally insufficient to support the conviction and that the court therefore erred in denying his motion to dismiss the indictment at the close of the People's case. Defendant failed to renew his motion after presenting witnesses for the defense "and thus waived `subsequent review of that determination'" ( People v. Grantier, 295 A.D.2d 988, 988, quoting People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). The contention of defendant that he was denied a fair trial by prosecutorial misconduct is without merit. The alleged misconduct was either fair comment on the evidence ( see People v. Casillas, 289 A.D.2d 1063, 1064-1065, lv denied 97 N.Y.2d 752; People v. Robinson, 267 A.D.2d 981, lv denied 95 N.Y.2d 838) or was properly addressed by the court's curative instructions, which alleviated any prejudice to defendant ( see People v. Galloway, 54 N.Y.2d 396, 399). In any event, our "review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" and thus reversal on the ground of prosecutorial misconduct is not warranted ( People v. Mott, 94 A.D.2d 415, 419). Contrary to the contention of defendant in his pro se supplemental brief, he was not denied effective assistance of counsel ( see generally People v. Benevento, 91 N.Y.2d 708, 712-713; People v. Baldi, 54 N.Y.2d 137, 147). The sentence is neither unduly harsh nor severe.