Case held, decision reserved, and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: Upon completion of jury selection and prior to the commencement of trial, defendant moved for a mistrial upon the ground that the prosecutor's exercise of peremptory challenges was racially motivated. Defense counsel noted that 2 of the 3 potential black jurors in the venire were removed although there was nothing in their family background or occupational experience to warrant removal aside from color. The third person was seated as an alternate, but was eventually excused and did not deliberate on the case. The prosecutor noted that she did not consider race as a factor in disqualifying jurors and that defense counsel removed peremptorily several potential female jurors. The court summarily denied the motion, indicating that there was no systematic exclusion of black jurors because one black was seated as an alternate and that to the Judge's personal knowledge, the prosecutor had regularly seated black jurors in other cases.

In Batson v Kentucky ( 476 U.S. 79), the Supreme Court held that a prosecutor could not use peremptory challenges to exclude persons of the same cognizable racial group as defendant solely on the basis of race, and the Supreme Court has since held that the Batson ruling applies to all cases pending on direct appeal (Griffith v Kentucky, 479 U.S. 314, 93 L Ed 2d 649).

We find that defendant set forth facts sufficient for a prima facie showing that peremptory challenges were exercised in a racially discriminatory manner, thereby shifting the burden to the prosecutor to provide neutral explanations for her peremptory challenges (People v Knight, 134 A.D.2d 845; People v James, 132 A.D.2d 932). The prosecutor's burden is not satisfied by conclusory assertions of good faith or by claims of nondiscriminatory conduct in other cases (see, Batson v Kentucky, 476 U.S. 79, 98, supra), or by the fact that one black juror was seated as an alternate (People v James, supra). Because the trial court failed to conduct further inquiry as to neutral reasons for the exercise of the prosecutor's peremptory challenges, we remit the matter for a hearing on this issue (People v Knight, supra; People v James, supra). Although the voir dire was conducted nearly four years ago, the Trial Judge continues to preside over criminal trials, and there is no claim that the factual circumstances cannot be reconstructed (cf., People v Scott, 70 N.Y.2d 420, 426).