People v. Bryant

159 A.D.2d 962, 552 N.Y.S.2d 778, 1990 N.Y. App. Div. LEXIS 3248

Opinion

Case held, decision reserved, and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: On appeal from a judgment convicting him of rape in the first degree, defendant contends that the prosecutor impermissibly used a peremptory challenge to exclude the only prospective black juror (see, Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420). At his trial in 1983, before Batson was decided, defendant complained that the prosecutor’s peremptory challenge to the single black potential juror resulted in an all-white jury deciding whether defendant, a black man, had raped a white woman. The prosecutor gave no explanation for his use of the peremptory challenge. We find that defendant set forth a prima facie case of discrimination under Batson v Kentucky (supra) and remit the matter for a reconstruction hearing (see, People v Stevens, 145 AD2d 925; People v Lincoln, 145 AD2d 924). Although the Trial Judge has retired, he is available to be called as a witness at the hearing (see, People v Lincoln, supra). (Appeal from judgment of Erie County Court, Dillon, J. — rape, first degree.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.