Opinion
July 13, 1993
Appeal from the Supreme Court, Bronx County (Bonnie Wittner, J.).
It is well settled that the racially motivated exercise of peremptory challenges is constitutionally impermissible (Batson v. Kentucky, 476 U.S. 79; Griffith v. Kentucky, 479 U.S. 314; Holland v. Illinois, 493 U.S. 474; Alvarado v. United States, 497 U.S. 543; see also, People v. Bolling, 79 N.Y.2d 317; People v Jenkins, 75 N.Y.2d 550; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824). In the situation herein, defense counsel protested to the court after the prosecution had used eight of its nine peremptory challenges to exclude African-Americans from the jury. The Assistant District Attorney then commented that "each and every Hispanic" had been disallowed by the defense. The Trial Judge, concluding that the jury selection was not racially discriminatory, noted that three of the four jurors already sworn were black. The prosecutor proceeded to challenge another black person, and defendant's attorney renewed his objections to the selection process, successfully requesting "additional challenges under the circumstances." Although the jury ultimately seated consisted of a high percentage of black individuals, the persons excluded by the District Attorney's peremptory challenges were disproportionately black notwithstanding that they were diverse group of people in terms of gender, religion, occupation and affiliations.
As the Court of Appeals observed in People v. Bolling (supra, at 321): "The purpose of the Batson rule is to eliminate discrimination, not minimize it", and, therefore, it is irrelevant "that the jury, as finally selected, contained a proportionate number of African-Americans". In order to establish a prima facie case of discrimination arising out of the prosecution's use of peremptory challenges, a defendant must demonstrate that he or she is a member of a particular racial group, that the prosecutor exercised peremptory challenges to remove members of defendant's race from the panel and that the facts and other relevant circumstances are such as to create an inference that the prosecutor employed the challenges to exclude people because of their race (Batson v. Kentucky, supra; People v Bolling, supra; People v. Jenkins, supra). In that regard, the facts are more than sufficient to raise an inference that the Assistant District Attorney invoked his peremptories to discriminate, and the trial court should have compelled the prosecutor to explain his challenges. Accordingly, this matter should be remanded so as "to afford the People an opportunity to provide racially neutral reasons for the exercise of their peremptory strikes" (People v. Bolling, supra, at 325).
Concur — Sullivan, J.P., Milonas, Ellerin and Asch, JJ.