People v. Lincoln

145 A.D.2d 924, 536 N.Y.S.2d 609, 1988 N.Y. App. Div. LEXIS 13942

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 defendant of burglary in the second degree and possession of burglary tools, defendant, a black male, claims that the prosecutor impermissibly used peremptory challenges to exclude prospective black jurors (see, People v Scott, 70 NY2d 420; Batson v Kentucky, 476 US 79). As voir dire was not transcribed, the record is insufficient to assess defendant’s claim. Defendant raised objection before the trial court, noting that the prosecutor had used his peremptory challenges to exclude three black veniremen; the objection elicited no response. Under these circumstances, we find that defendant raised sufficient question to require a response (see, People v Pender, 144 AD2d 932; People v Lawson, 136 AD2d 929, lv dismissed 70 NY2d 1007; People v Knight, 134 AD2d 845). There has been no showing that a reconstruction hearing would be inappropriate (cf., People v Scott, supra; People v Pender, supra). Accordingly, we hold the case, and we remit the matter to Erie County Court to hold a hearing on the issue and to make specific findings of fact and conclusions of law (People v Lawson, supra; People v Knight, supra). Although the Trial Judge is no longer in County Court, she is available to be called as a witness at the reconstruction hearing. (Appeal from judgment of Erie County Court, Wolfgang, J. — burglary, second degree, and another charge.) Present — Callahan, J. P., Denman, Green, Pine and Balio, JJ.