Opinion
November 15, 1988
Appeal from the Supreme Court, Monroe County, Kennedy, J., Bergin, J.
Present — Doerr, J.P., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Upon remittitur for a hearing pursuant to Batson v Kentucky ( 476 U.S. 79), the hearing court found that the prosecutor had provided racially neutral reasons for his exercise of peremptory challenges to black potential jurors. In our view, this finding is not reliable and cannot be sustained. Almost four years had passed since defendant's trial, the voir dire by the attorneys had not been recorded, and the Judge who had presided at the trial had died. The record of the hearing reveals that the memories of the remaining participants in voir dire had dimmed, and the notes of the voir dire taken by the prosecutor were too sketchy and unenlightening to allow for effective review. Based on these circumstances, we reverse the conviction and grant a new trial (see, People v. Scott, 70 N.Y.2d 420, 426).