Opinion
May 28, 1991
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the prosecutor's exercise of peremptory challenges, and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.
We agree with the defendant's contention that he established, prima facie, that the prosecutor exercised his peremptory challenges in a racially discriminatory manner (see, Batson v Kentucky, 476 U.S. 79; People v Jenkins, 75 N.Y.2d 550; People v Mack, 143 A.D.2d 280). The prosecutor in this case was apparently prepared for defense counsel's application as he was ready to explain why he had used six of his eight peremptory challenges to strike black venirepersons from the petit jury. The Supreme Court, however, determined that explanations were not necessary, apparently based upon the court's mistaken conclusion that Batson analysis was inapposite to a case, such as at bar, where both the defendant and the complainant were black. Thus, the prosecutor was never afforded the opportunity, which he sought, to explain his use of peremptory challenges himself (see, People v Jenkins, supra; People v Bozella, 150 A.D.2d 471; People v Howard, 128 A.D.2d 804). The Supreme Court's determination of this matter was erroneous (cf., Powers v Ohio, 499 US ___, 111 S Ct 1364) as the pattern of the prosecutor's peremptory challenges gave rise to a prima facie inference that the prosecutor had challenged these venirepersons on the basis of their race (see, People v Blunt, 162 A.D.2d 86). Accordingly, the matter is remitted for an evidentiary hearing for the prosecutor to offer race-neutral explanations for his challenges, if he is able to do so (see, People v Miles, 161 A.D.2d 672; People v Bush, 157 A.D.2d 736), pending which the appeal from the judgment of conviction is held in abeyance (see, People v Levon, 166 A.D.2d 670; People v Sandy, 150 A.D.2d 625). Kunzeman, J.P., Balletta, Miller and O'Brien, JJ., concur.