Opinion
February 1, 1991
Appeal from the Supreme Court, Onondaga County, Clary, J.
Present — Dillon, P.J., Doerr, Denman, Green and Lowery, JJ.
Case held, decision reserved and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Defendant was convicted of murder in the second degree (Penal Law § 125.25), robbery in the first degree (Penal Law § 160.15) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). All but one of the issues raised on appeal are without merit. The record establishes that defendant was afforded a reasonable opportunity to exercise his right to testify before the Grand Jury (see, CPL 190.50); that the suppression court properly denied his motion to suppress statements that he made to the police; that the trial court did not err in precluding defendant's counsel from eliciting testimony that the victim, about whom defendant had no prior knowledge, had violent propensities (see, People v Miller, 39 N.Y.2d 543, 551-552); and that his sentence was appropriate in all respects.
There may be merit, however, to defendant's argument that the prosecutor impermissibly used peremptory challenges to exclude prospective black jurors (see, Batson v Kentucky, 476 U.S. 79; People v Scott, 70 N.Y.2d 420). The record demonstrates that defendant made a prima facie showing of discrimination but that the court, in ruling summarily on defendant's objections, failed to give the prosecutor a reasonable opportunity to offer race-neutral explanations for excluding two black potential jurors. Accordingly, we reserve decision and remit the case to Supreme Court for a hearing and for determination of the issue (see, People v Scott, supra, at 426; People v Merritt, 148 A.D.2d 924).