People v. Levon

166 A.D.2d 670, 561 N.Y.S.2d 258, 1990 N.Y. App. Div. LEXIS 12919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered March 25, 1987, convicting him of burglary in the third degree, 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.

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 US 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 NY2d 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 AD2d 325). Lawrence, J. P., Kooper, Harwood and Balletta, JJ., concur.