Opinion
2012-01-10
The PEOPLE, etc., respondent, v. David RAMOS, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Kaye Scholer LLP [Julie B. Du Pont], of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Kaye Scholer LLP [Julie B. Du Pont], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered June 5, 2009, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
Contrary to the People's contention, the defendant's claim regarding the denial of his application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 is preserved for appellate review ( see People v. Davis, 253 A.D.2d 634, 635, 677 N.Y.S.2d 541; cf. People v. Smocum, 99 N.Y.2d 418, 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275; People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152; cf. People v. Lugo, 69 A.D.3d 654, 654, 893 N.Y.S.2d 173; People v. Patterson, 40 A.D.3d 659, 659, 833 N.Y.S.2d 411; People v. Reeder, 221 A.D.2d 666, 667, 634 N.Y.S.2d 513). Furthermore, once the court ordered the prosecutor to set forth the reasons for his peremptory challenges, it effectively found that a prima facie case of discrimination had been established ( see People v. Brown, 193 A.D.2d 611, 597 N.Y.S.2d 434). Moreover, contrary to the People's contention, the court did not revisit the issue of whether the defendant had established a prima facie case. Thus, the sufficiency of the prima facie showing became moot ( see People v. Hecker, 15 N.Y.3d 625, 652, 917 N.Y.S.2d 39, 942 N.E.2d 248, cert denied sub nom. Black v. New York, –––U.S. ––––, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ). The prosecutor offered no explanation for his use of peremptory challenges on two of the five Hispanic prospective jurors at issue and, therefore, the Supreme Court should have granted the defendant's Batson application ( see People v. Allen, 86 N.Y.2d 101, 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173; People v. Brown, 193 A.D.2d at 612, 597 N.Y.S.2d 434). Accordingly, the defendant is entitled to a new trial.
In light of the foregoing determination, we need not reach the defendant's claim that the sentence imposed was excessive ( see generally People v. Thornton, 236 A.D.2d 430, 431, 654 N.Y.S.2d 323).