People v. Stevens

167 A.D.2d 975, 563 N.Y.S.2d 706, 1990 N.Y. App. Div. LEXIS 14597

Opinion

Judgment unanimously reversed on the law and new trial granted. Memorandum: Our court previously held this appeal in abeyance and remitted the matter to Erie County Court for a hearing on the propriety of the prosecutor’s exercise of peremptory challenges to exclude all prospective black jurors from the jury (People v Stevens, 145 AD2d 925). After a full hearing, County Court issued a written decision finding that the prosecutor had failed to provide racially neutral reasons for excluding all four black members of the 46-person venire, and had consciously attempted to exclude members of defendant’s race from being seated on the panel. The record at the reconstruction hearing fully supports the hearing court’s conclusion that there was a violation of the principles enunciated in Batson v Kentucky (476 US 79). Thus, defendant’s conviction must be reversed and a new trial granted.

Defendant’s remaining issues on appeal are either without merit or were not properly preserved for appellate review. Since we have granted defendant a new trial, however, we would note that the testimony of an Assistant District Attorney on the victim’s prior identification of defendant at the preliminary hearing constituted improper bolstering (see, People v Johnson, 57 NY2d 969; People v Cioffi, 1 NY2d 70; People v Trowbridge, 305 NY 471). (Appeal from judgment of Erie County Court, Wolfgang, J.—robbery, first degree.) Present— Callahan, J. P., Denman, Green, Balio and Davis, JJ.