People v. Hockett

121 A.D.2d 878, 503 N.Y.S.2d 995, 1986 N.Y. App. Div. LEXIS 59011

Opinions

Appeal from judgment, Supreme Court, New York County (Luis Ñeco, J.), rendered March 22, 1984, which convicted defendant, after a jury trial, of the crime of robbery in the second degree (Penal Law § 160.10), and sentenced him, as a violent predicate felon, to an indeterminate prison term of from 5Vx to 11 years, held in abeyance, and the action is remanded to the trial court to hold an evidentiary hearing concerning the prosecutor’s exercise of his peremptory challenges, in accordance with Batson v Kentucky (476 US —, 90 L Ed 2d 69).

Following the completion of jury selection, and before the trial commenced, defense counsel moved for a mistrial, on the ground that the prosecutor had used 12 of his 17 peremptory challenges to strike potential black jurors. The trial court denied that motion.

On April 30, 1986, the United States Supreme Court in Batson v Kentucky (476 US —, 90 L Ed 2d 69, supra), enunciated the standard to be used in order to determine whether a defendant has made a prima facie case of discriminatory selection by a prosecutor of a petit jury. In pertinent part, the Supreme Court held in Batson (supra, p —, pp 87-88):

"[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial [and no longer has to present proof that the prosecutor has followed this practice over a number of cases] * * *

"Once the defendant makes a prima facie showing, the burden shifts to the [prosecutor] to come forward with a neutral explanation for challenging black jurors”.

Accordingly, we conclude that fairness requires us to remand this matter to the trial court for an evidentiary hearing in accordance with the principles set forth in Batson (supra), while we hold the appeal from the judgment of conviction in abeyance. Concur — Ross, Carro, Lynch and Rosenberger, JJ.