People v. Rosado

Nov 29, 2007
Versions:45 A.D.3d 508
846 N.Y.S.2d 165

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 41/3 to 11 years, held in abeyance, and the matter remanded for further proceedings pursuant to Batson v Kentucky (476 US 79 [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 US 162, 173 [2005]; People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]; People v Claudio, 10 AD3d 531, 533 [2004], lv denied 4 NY3d 829 [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. Concur—Tom, J.P., Mazzarelli, Sullivan, Gonzalez and McGuire, JJ.