Opinion
October 22, 1990
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the case is remitted to the Supreme Court, Kings County, to hear and report on the prosecutor's exercise of peremptory challenges, and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.
Once the defendant had established a prima facie case of purposeful discrimination in jury selection by the prosecutor, it became incumbent upon the prosecutor to come forth with a racially neutral explanation for the use of his peremptory challenges (see, Batson v. Kentucky, 476 U.S. 79). That the jury, as finally constituted, included five black jurors is immaterial. As the Court of Appeals recently stated in People v. Jenkins ( 75 N.Y.2d 550, 559), "[f]or the purposes of equal protection, the constitutional violation is the exclusion of any blacks solely because of their race".
Accordingly, the matter is remitted for an evidentiary hearing during which time the appeal from the judgment of conviction is held in abeyance (see, People v. Epps, 163 A.D.2d 325). Lawrence, J.P., Kooper, Harwood and Balletta, JJ., concur.