Opinion
June 6, 1989
Appeal from the Supreme Court, New York County (Eve Preminger, J.).
On April 30, 1986, a date subsequent to the trial but prior to both the November 25, 1986 filing of appellant's brief and the June 9, 1987 appellate argument, the United States Supreme Court issued its decision in Batson v. Kentucky (supra), which held that the Equal Protection Clause of the Fourteenth Amendment forbids prosecutorial exercise of peremptory challenges to exclude potential jurors solely on the basis of race or on the assumption that they could not impartially determine the State's case against a defendant of the same race. It is appellate counsel's failure to raise a Batson claim on appeal which forms the basis of the within pro se writ of error coram nobis by defendant.
In the transcripts of the trial proceedings is contained the following application by trial counsel: "My second motion is for a mistrial on the grounds that [the prosecutor] deliberately and knowingly excluded Hispanics from the jury panel and as a matter of fact during the challenges there was one individual with an Italian name [and the prosecutor] left him on and then became very, very concerned about the fact because he thought he might be Hispanic but it was too late to knock him off."
Inasmuch as this assertion of prosecutorial exercise of racially motivated peremptory challenges appears on the record and, indeed, was not challenged or otherwise answered by the prosecutor, defendant argues, and we agree, that the record was sufficient to alert appellate counsel of the existence of a Batson issue and to, at minimum, warrant further investigation on that question. Had counsel, for example, ordered the minutes of the colloquy among trial counsel and the court during voir dire, which was the only portion of the voir dire proceedings recorded, he would have obtained the following additional information on this issue:
"[Defense Counsel]: [The prosecutor] challenged the only Hispanic on the panel.
"[Prosecutor]: I would indicate that the People have a right to exercise peremptory challenges as they desire. * * *
"[Defense Counsel]: Let the record reflect [the prosecutor] again excluded all the Hispanics who were on the next panel."
In light of the fact that the use of peremptory challenges by the prosecutor to systematically exclude Hispanics from the jury for discriminatory purposes would, if established, warrant a reversal and a new trial (Batson v. Kentucky, supra; see, People v. Scott, 70 N.Y.2d 420; People v. Hockett, 128 A.D.2d 393), we find appellate counsel's omission of argument in this regard sufficient ground to constitute ineffective assistance with respect thereto. (Cf., People v. de la Hoz, 131 A.D.2d 154.)
Accordingly, the writ of error coram nobis is granted, the order of this court affirming the judgment of conviction vacated, and defendant is permitted to develop and argue his claim that the prosecutor improperly exercised peremptory challenges to exclude Hispanic persons from the jury.
Concur — Ross, J.P., Milonas, Kassal and Smith, JJ.