Opinion
January 30, 1995
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
We find that the trial court erroneously rejected the defendant's peremptory challenge of a prospective juror despite defense counsel's articulation of nonpretextual, racially-neutral reasons for his challenge. Challenges by the defendant based on jurors' "crime-victimization status" are not pretextual on their face, and they should not be regarded as pretextual in the absence of evidence that they are being applied in a discriminatory manner (see, People v. Dixon, 202 A.D.2d 12; People v. Taylor, 208 A.D.2d 967). In this case, the record does not support a finding that the defendant was using challenges based on victimization status in a discriminatory manner. Consequently, his peremptory challenge should not have been rejected.
For the foregoing reasons, the defendant was deprived of his right to a jury of his choice, and a new trial is required.
We have examined the defendant's remaining contention and find it to be without merit. Rosenblatt, J.P., Altman, Friedmann and Florio, JJ., concur.