Opinion
June 1, 1992
Appeal from the Supreme Court, Queens County (Groh, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
We find that a new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see, Batson v. Kentucky, 476 U.S. 79; People v. Hernandez, 75 N.Y.2d 350, 355, affd 500 US ___, 111 S Ct 1859). The prosecutor advanced as a reason for her removal of a potential black juror — one of various patrons of a lounge who were robbed several years earlier — that the juror would resent the fact that the complainant in this case, whom the prosecutor stressed was a white woman, had seen her assailant brought to justice while in her case, "there [weren't] any results". Moreover, the prosecutor's foregoing factual assertion was unsupported by the voir dire minutes which indicated only that the potential juror did not know whether any arrests had been made in her case and that she was never called to appear as a witness.
The second reason advanced by the prosecutor for excluding the potential juror — that in light of her own experience, she would find it difficult to believe that a good identification could be made in this case where there was less than a "crowded lounge full of witnesses" — is based on the same factual assertion, which we have already found to be unsupported by the record. Under the totality of the circumstances, we conclude that the nonracial basis advanced by the prosecutor was a pretext (see, People v. Hernandez, supra).
"For the purposes of equal protection, the constitutional violation is the exclusion of any blacks solely because of their race" (People v. Jenkins, 75 N.Y.2d 550, 559). Accordingly, the race-based challenge to the potential black juror requires reversal and the ordering of a new trial. In view of our decision, we need not determine whether the peremptory challenges exercised by the prosecutor with regard to the other black potential jurors also were race-based. Bracken, J.P., Sullivan, Eiber and Copertino, JJ., concur.