Opinion
December 23, 1988
Appeal from the Erie County Court, Wolfgang, J.
Present — Callahan, J.P., Denman, Green, Pine and Balio, JJ.
Case held, decision reserved, and matter remitted to Erie County Court for further proceedings in accordance with the following memorandum: On appeal from a conviction of robbery, defendant contends, inter alia, that he was denied his constitutional right to a fair trial due to the prosecutor's use of peremptory challenges to exclude all blacks from the jury (see, Batson v Kentucky, 476 U.S. 79). This issue was timely raised by defendant's attorney during the voir dire process. In addition, a motion for mistrial was made after the jury was impaneled. In summarily denying the motion, the court never addressed the issue. It is apparent from the record that defendant articulated facts sufficient to support the conclusion that the prosecutor exercised his peremptory challenges in a racially discriminatory manner (see, People v Knight, 134 A.D.2d 845) and the prosecutor did not come forth with any adequate neutral explanation for his peremptory challenges.
In our view a reconstruction hearing is necessary (see, People v Lincoln, 145 A.D.2d 924).