Opinion
2000-10101
Submitted December 10, 2002.
February 18, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered October 25, 2000, convicting him of robbery in the second degree, robbery in the third degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Rachel Altstein of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, and Lisa Drury of counsel; Akiva Cohen on the brief), for respondent.
Before: DAVID S. RITTER, J.P., DANIEL F. LUCIANO, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the matter is remitted to the Supreme Court, Queens County, to hear and report on the prosecutor's exercise of a peremptory challenge against a male black venireperson, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, shall file its report with all convenient speed.
During the second round of jury selection, the prosecutor exercised one of his peremptory challenges to excuse a male black venireperson. The defense counsel raised a challenge under Batson v. Kentucky ( 476 U.S. 79), on the basis that this individual was the only black venireperson examined during the first two rounds of jury selection. The defense counsel argued that the individual was similarly situated to prospective jurors who were not challenged by the prosecutor. The trial court found that the defense counsel had not made out a prima facie case of discrimination, and did not require the prosecutor to provide a race-neutral reason for the challenged peremptory strike.
The defendant sustained his initial burden of raising an inference that the prosecutor used a peremptory challenge to exclude a potential juror because of his race (see People v. Brown, 97 N.Y.2d 500, 507; People v. Childress, 81 N.Y.2d 263; People v. Bolling, 79 N.Y.2d 317, 323-324). Accordingly, the trial court should have required the prosecutor to provide race-neutral reasons for his exercise of the peremptory challenge (see People v. Guzman, 251 A.D.2d 680, 681). Since the court failed to do so, the matter must be remitted to the Supreme Court, Queens County, to afford the prosecutor an opportunity to offer race-neutral reasons for the challenge.
In light of our determination, no other issue is addressed at this juncture.
RITTER, J.P., LUCIANO, COZIER and RIVERA, JJ., concur.