PEOPLE v. CARDWELL (1998)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered September 12, 1997, convicting him of criminal possession of stolen property in the third degree, possession of burglar's tools, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Queens County, to hear and report on the defendant's Batson challenge, and if the defendant makes a prima facie showing of a purposeful exclusion of a black venireperson, then 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.

During jury selection, the defense counsel attempted to challenge, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the prosecutor's motives in using one of his peremptory challenges to excuse a black venireperson.   The court did not, however, allow the defense counsel to set forth the “facts and other relevant circumstances” which he felt made out a prima facie case of purposeful exclusion by the prosecutor (see, People v. Jenkins, 84 N.Y.2d 1001, 1002, 622 N.Y.S.2d 509, 646 N.E.2d 811;  People v. Childress, 81 N.Y.2d 263, 266, 598 N.Y.S.2d 146, 614 N.E.2d 709;  People v. Durant, 250 A.D.2d 698, 672 N.Y.S.2d 433).   The defense counsel is entitled to an opportunity to make out a prima facie Batson showing (see, People v. Garcia, 217 A.D.2d 119, 636 N.Y.S.2d 370).

MEMORANDUM BY THE COURT.