Opinion
November 10, 1987
Appeal from the Supreme Court, Monroe County, Kennedy, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Case held, decision reserved, and matter remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: In the course of jury selection, defense counsel placed upon the record the fact that the prosecutor had exercised peremptory challenges to remove the only two black members of the venire. Counsel further noted that he could ascertain from their answers to the questions put to them during voir dire no reason for their removal other than their color. The court did not allow defense counsel further opportunity to develop this argument, but abruptly dismissed the objections, relying on the Court of Appeals decision in People v Charles ( 61 N.Y.2d 321). Since the Court of Appeals decided that case, the Supreme Court held, in Batson v. Kentucky ( 476 U.S. 79, 90 L Ed 2d 69), that a prosecutor may not use peremptory challenges to exclude persons of the same cognizable racial group as the defendant from the jury solely on the basis of race. Further, the Supreme Court determined, in Griffith v. Kentucky ( 479 U.S. 314, 107 S Ct 708), that its ruling in Batson is applicable to all litigation pending on direct appeal.
We find that defendant articulated facts sufficient to support the conclusion that the prosecutor exercised his peremptory challenges in a racially discriminatory manner, thereby shifting the burden to the prosecutor to provide neutral explanations for his peremptory challenges. Because the trial court refused to conduct further inquiry, we remit the matter to Supreme Court, Monroe County, for a hearing on this issue (People v. James, 132 A.D.2d 932; People v. Howard 128 A.D.2d 804; cf., People v. Wilson, 126 A.D.2d 970, lv denied 69 N.Y.2d 1011).
Although the task of holding such a hearing has been made more burdensome by the intervening death of the Trial Judge, we are unable to say that it has become impossible. The burden at the hearing is on the prosecutor to give reasons for his peremptory challenge to the only black persons in the venire and demonstrate that his challenges were not racially motivated.
All concur, except Balio, J., who dissents and votes to affirm in the following memorandum.
I respectfully dissent. In my view, the impossibility of an accurate reconstruction of the voir dire in this case is the same as the situation presented in People v. Wilson ( 126 A.D.2d 970, lv denied 69 N.Y.2d 1011), and for the reasons expressed in Wilson, I would affirm the judgment of conviction.