People v. Kinard

151 A.D.2d 963, 542 N.Y.S.2d 413, 1989 N.Y. App. Div. LEXIS 8267

Opinion

Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: Under the facts of this case, defendant is not precluded from raising the issue of the discriminatory exercise of peremptory challenges by the prosecution for the first time on appeal. The issue had been raised at trial by a codefendant and the record indicates that four potential veniremen who are black were peremptorily excused by the prosecutor, leaving an all-white jury to decide the fate of defendant, who is black. Thus, a prima facie case of racial discrimination was set forth under Batson v Kentucky (476 US ). Because 10 years have passed since this conviction and the Trial Judge has died, we conclude that a reconstruction hearing is impossible. Therefore, defendant is entitled to a new trial (see, People v Harris, 151 AD2d 961). (Appeal from judgment of Supreme Court, Monroe County, Kennedy, J.— robbery, first degree; grand larceny, third degree.) Present— Dillon, P. J., Doerr, Green, Pine and Davis, JJ.