People v. Bennett

186 A.D.2d 812

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered November 2, 1989, convicting him of murder in the second degree, criminal possession of a weapon in the second degree (three counts), and criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence.

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.

The defendant has established a prima facie case of purposeful discrimination in the jury selection by the prosecutor, who exercised her peremptory challenges in the first three rounds of the voir dire to exclude 7 out of 11 blacks from the jury, or nearly 64% of the prospective black jurors. The prosecutor challenged only 36% of the nonblacks during those rounds (see, People v Bolling, 79 NY2d 317; People v Jenkins, 75 NY2d 550; People v Reed, 178 AD2d 666; People v Epps, 163 AD2d 325). The Supreme Court rejected the defendant’s claim and did not require the prosecutor to place on the record the reasons for the exclusion of the challenged jurors. The matter is, therefore, remitted for an evidentiary hearing, where the prosecutor is to give the reasons for her challenges (see, Batson v Kentucky, 476 US 79; People v Jenkins, supra; People v Reed, supra).

We do not reach any other issues. Mangano, P. J., Thompson, Rosenblatt and Copertino, JJ., concur.