Opinion
May 5, 1997
Appeal from the Supreme Court, Bronx County (Alexander Hunter, J.).
This petition must be dismissed, since neither type of relief sought, prohibition or declaratory judgment, is appropriate here ( see, Matter of State of New York v. King, 36 N.Y.2d 59, 62 [prohibition unavailable to "review an error of law in a pending criminal action, however egregious and however unreviewable"]; Matter of Jacobs v. Altman, 69 N.Y.2d 733, 735 [same]; La Rocca v. Lane, 37 N.Y.2d 675, 579, cert denied 424 U.S. 968 [same]; see also, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 150, 152, cert denied 464 U.S. 993 [declaratory relief "`is available in cases "where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved"'", "action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court"]). However, since the circumstances herein are likely to recur, we take this opportunity to note that the court improperly applied the tripartite Batson standard to defendant's claim of pretextual peremptory strikes seeking the exclusion of African-American females from the jury. Specifically, at step three, the court must state and explicate on the record its findings as to whether the explanation offered in support of the strikes was pretextual or not ( see, People v. Payne, 88 N.Y.2d 172, 183-184). Here, the court did not do so, nor is it apparent from the record that the reasons given by the prosecutor were indeed pretextual. After the prosecutor provided facially race-neutral explanations of the strikes, neither defense counsel nor the court specifically rebutted such contentions.
Concur — Sullivan, J.P., Milonas, Nardelli and Williams, JJ.