34 A.D.3d 1225
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DAVID WILMOT, Appellant.

[823 NYS2d 800]

Appellate Division of the Supreme Court of New York, Fourth Department

34 A.D.3d 1225

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered August 26, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

Memorandum: On appeal from a judgment convicting him, following a jury trial, of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [2]), defendant contends that Supreme Court erred in permitting the prosecutor to exercise a peremptory challenge to exclude a black prospective juror. We agree. Following defendant‘s Batson objection, the prosecutor explained that he was exercising the peremptory challenge because of the age and lack of “lifelong experience” of the juror. “[W]hile age is, facially, a race-neutral reason for a peremptory challenge to a juror, an explanation based upon age can become pretextual if it bears no relationship to the facts of the case . . . , or if other jurors of a similar age are not objected to on that ground” (People v Smalls, 249 AD2d 495, 495 [1998], lv denied 92 NY2d 986 [1998]). Here, the fact that the prospective juror at issue was 19 years old bore no relationship to the facts of the case (see People v Burroughs, 295 AD2d 959 [2002], lv denied 99 NY2d 534 [2002]). Further, the prosecutor did not exercise a peremptory challenge to exclude a 22-year-old white male prospective juror who had a similar background with respect to his education and living arrangement. We thus conclude that the prosecutor‘s explanation was pretextual, and we reverse the judgment of conviction and grant a new trial (see id.). Contrary to defendant‘s further contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In view of our determination, we do not address defendant‘s remaining contentions. Present—Hurlbutt, A.P.J., Martoche, Centra and Pine, JJ.