IN RE: Application of Robert T. JOHNSON (1997)

Petition, pursuant to CPLR Article 78, for a writ of prohibition annulling the order of Supreme Court, Bronx County (Alexander Hunter, J.), made on or about April 14, 1997, which granted defendant's challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 and directed that four prospective jurors, previously challenged peremptorily by the People, be reseated, or, alternatively, for declaratory relief, unanimously dismissed, without costs.

This petition must be dismissed, since neither type of relief sought, prohibition or declaratory judgment, is appropriate here (see, Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351 [prohibition unavailable to “review an error of law in a pending criminal action, however egregious and however unreviewable”];  Matter of Jacobs v. Altman, 69 N.Y.2d 733, 735, 512 N.Y.S.2d 361, 504 N.E.2d 688 [same];  LaRocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 338 N.E.2d 606 cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 [same];  see also, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 150, 152, 464 N.Y.S.2d 392, 451 N.E.2d 150, cert. denied 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 [declaratory relief “is available in cases ‘where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved’ ”․ “action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court”] ).   However, since the circumstances herein are likely to recur, we take this opportunity to note that the court improperly applied the tripartite Batson standard to defendant's claim of pretextual peremptory strikes seeking the exclusion of African-American females from the jury.   Specifically, at step three, the court must state and explicate on the record its findings as to whether the explanation offered in support of the strikes was pretextual or not (see, People v. Payne, 88 N.Y.2d 172, 183-84, 643 N.Y.S.2d 949, 666 N.E.2d 542).   Here, the court did not do so, nor is it apparent from the record that the reasons given by the prosecutor were indeed pretextual.   After the prosecutor provided facially race-neutral explanations of the strikes, neither defense counsel nor the court specifically rebutted such contentions.

MEMORANDUM DECISION.