PEOPLE v. ROSADO (2007)

Appeal from judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered August 30, 2005, convicting defendant, after a jury trial, of rape in the second degree (four counts), rape in the third degree (four counts), and endangering the welfare of a child (two counts), and sentencing him, as a second felony offender, to an aggregate term of 4 1/313 to 11 years, held in abeyance, and the matter remanded for further proceedings pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].

Defendant satisfied step one of Batson (a prima facie case of discrimination) by showing that the prosecutor had exercised a peremptory challenge against every Hispanic panelist in the venire that remained available following the excusal of other venirepersons for cause or by consent (see e.g. Johnson v. California, 545 U.S. 162, 173, 162 L.Ed.2d 129 [2005];  People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991];  People v. Claudio, 10 A.D.3d 531, 533, 782 N.Y.S.2d 28 [2004], lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677 [2005] ).   Moreover, the prosecutor exercised a total of eight peremptory challenges, using half of them to eliminate the four Hispanic panelists, whereas the percentage of Hispanics in the voir dire was slightly over 10%.   In these circumstances, defendant's numerical argument was sufficient to raise an inference of discrimination even though it was not accompanied by any other evidence.

Accordingly, we remand for completion of the Batson proceedings so that the People can offer ethnicity-neutral reasons for these challenges.