PEOPLE v. BATTLE (2002)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered August 10, 2000, convicting him of resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith, and the appeal is held in abeyance in the interim.

Upon the prosecutor's sixth peremptory challenge to a black prospective juror, the defendant made a Batson application, arguing that the prosecutor should be required to provide race-neutral reasons for all six challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   The trial court required the prosecutor to provide race-neutral reasons only for the last challenge.

 Contrary to the trial court's conclusion, the defendant's Batson application was timely, since it was made before the end of jury selection (see People v. Ramirez, 295 A.D.2d 542, 744 N.Y.S.2d 683;  People v. Campos, 290 A.D.2d 456, 457, 736 N.Y.S.2d 108;  People v. Harris, 151 A.D.2d 961, 542 N.Y.S.2d 411).   By requiring the prosecutor to set forth race-neutral reasons for only one of the six contested challenges, “the presumption of purposeful racial discrimination remained unrebutted as to several potential jurors” (People v. Brown, 193 A.D.2d 611, 612, 597 N.Y.S.2d 434).   Thus, the matter is remitted to the Supreme Court, Queens County, for a hearing to afford the People the opportunity to establish nonpretextual race-neutral reasons for the remaining challenges (see People v. Ramirez, supra at 684;  People v. Hymes, 282 A.D.2d 546, 547, 722 N.Y.S.2d 759).