Summary
In People v. Hawthorne (80 N.Y.2d at 874), this Court modified an Appellate Division order by remitting the matter to the Trial Court.
Summary of this case from People v. BrownOpinion
Decided July 7, 1992
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, John J. Clabby, J. Eve Kessler and Philip L. Weinstein for appellant.
Richard A. Brown, District Attorney (Emil Bricker of counsel), for respondent.
MEMORANDUM.
The Appellate Division order should be modified by remitting to Supreme Court, Queens County, for further proceedings in accordance with this memorandum and, as so modified, affirmed.
Defendant — pointing to the fact that the prosecutor peremptorily challenged four of the six African-American members of the venire — contends that he has made a prima facie showing that the prosecution exercised its peremptory challenges in a racially discriminatory manner, and that the burden therefore shifted to the prosecution to come forward with racially neutral reasons for the strikes (see, Batson v Kentucky, 476 U.S. 79, 96; People v Bolling, 79 N.Y.2d 317). We agree. However, because the prosecutor was not asked to provide a racially neutral reason for one of the challenged jurors in question, we remit the case to the Supreme Court, Queens County, for a hearing to afford the People an opportunity to provide a racially neutral reason for the exercise of that strike. Should satisfactory explanation be provided by the People, the judgment of conviction should be amended to show that result. Otherwise, the judgment of conviction should be vacated and a new trial ordered.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed.