Opinion
March 27, 1995
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the prosecutor failed to prove that he used a dangerous object is unpreserved for appellate review (CPL 470.05; People v. Johnson, 169 A.D.2d 779; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defense counsel, during the voir dire of the third panel of potential jurors, objected to the prosecutor's use of his ninth and tenth peremptory challenges against black women. The record reflects that the prosecutor exercised either eight or nine of his ten peremptory challenges against black women. Such a disproportionate use of peremptory challenges raised an inference of discriminatory motives on the part of the prosecutor, shifting the burden to him to provide race-neutral reasons for his challenges (Batson v. Kentucky, 476 U.S. 79, 97). The court should have required the prosecutor to provide race-neutral reasons for his exercise of the peremptory challenges. Since the court failed to do so, the matter was remitted to the Supreme Court to afford the People the opportunity to offer race-neutral reasons for the challenges (see, People v. Holmes, supra). Since the prosecutor has been unable to provide race-neutral explanations for the peremptory challenges, we find that the constitutional rights of the defendant and the excluded venirepersons were violated (see, People v. Jenkins, 75 N.Y.2d 550, 557), and a new trial is warranted. Sullivan, J.P., Ritter, Pizzuto and Hart, JJ., concur.