Batson, which was not ruled to be retroactive until a year later. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). He ruled only that there had been “no clear showing” of a discriminatory use of peremptory challenges. Whether or not the showing that was made would have sufficed to oblige the prosecutor to articulate legitimate reasons had the claim been made at the time of jury selection, this was not a “reasoned” rejection of the federal claim. The trial court’s remarks did not impute to the Appellate Division a “merits” ruling, especially in light of the unwavering New York practice of declining to consider jury selection claims unless presented at the time the jurors are chosen. See People v. Barber, 156 A.D.2d 1022, 549 N.Y.S.2d 313 (N.Y.App.Div.1989) (<HOLDING>), appeal denied, 75 N.Y.2d 866, 553 N.Y.S.2d
holding batson challenge untimely because objection made after all jurors were sworn holding that batson challenge raised for the first time after trial was untimely in part because only remedy after trial is vacating the conviction holding that defendants batson claim was strongly discounted by the fact that three africanamerican jurors were sworn in holding that a batson challenge is not timely if the jury has been sworn and the venire dismissed and observing that sjeveral jurisdictions have closely analyzed batsons language and concluded that the us supreme court envisioned that a batson challenge must be made before the jury is sworn while citing numerous state decisions barring batson objections after the jury is sworn and the venire is dismissed holding batson claim untimely because it was not made before the jury or the last juror including the alternates is sworn but remanding for new trial in interests of justice