People v. Rodney , 596 N.Y.S.2d 169 ( 1993 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Berkowitz, J.), rendered January 7, 1991, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.

The defendant was arrested in a buy-and-bust operation after aiding in the sale of crack cocaine to an undercover police officer. On appeal, the defendant, who is black, argues that the People employed their peremptory challenges during jury selection in a racially-discriminatory manner in violation of Batson v Kentucky (476 US 79). We agree and reverse.

The racially-motivated use of peremptory challenges violates both the State and Federal Constitutions (see, Batson v Kentucky, 476 US 79, supra; People v Bolling, 79 NY2d 317). The United States Supreme Court, in Batson v Kentucky (supra), articulated a three-pronged test for evaluating claims of discrimination in jury selection. First, the defendant must show a prima facie case that the prosecutor is exercising peremptory challenges for racial reasons (Batson v Kentucky, supra, at 94-96). Second, if such a showing is made, the prosecutor must come forward with race-neutral reasons for making such challenges (Batson v Kentucky, supra, at 97-98). Third, the court must rule as to whether the defendant satisfied his or her burden of showing discrimination (Batson v Kentucky, supra, at 98).

The prosecutor exercised a disproportionately high number of peremptory strikes against black venirepersons, striking 7 out of the 10 prospective black jurors in the venire pool. When challenged by the defendant concerning 2 of the struck black venirepersons, the prosecutor stated that she had struck them because they did not have children. However, when it was pointed out that several similarly-situated white venirepersons were seated by the prosecutor, she asserted that the challenged black venirepersons did not fit her "prototype” of the juror she was seeking. However, neither reason is sufficient.

Although a peremptory challenge to a venireperson on the basis of whether he or she has a child is race-neutral on its face, such a challenge cannot, as here, be exercised in a discriminatory manner (see, e.g., People v Bolling, supra, at 324; People v Manuel, 182 AD2d 711). Similarly, although a proffered race-neutral reason need not rise to the level required for "cause” (see, Hernandez v New York, 500 US —, 111 S Ct 1859), the burden cannot be met by merely claiming good faith and denying discriminatory purpose (see, People v Bolling, supra, at 320; People v Dove, 172 AD2d 768). Here, to accept as sufficient the prosecutor’s bare assertion that the challenged black venirepersons did not fit her undisclosed prototype of a juror would be the equivalent of requiring no reason at all. The mere fact that, as here, some black jurors remained on the jury panel is not controlling, as even one racially-motivated challenge is sufficient to trigger Batson (see, People v Jenkins, 75 NY2d 550, 557; People v Lavon, 166 AD2d 670). Accordingly, we reverse the conviction and remit the case for a new trial. Bracken, J. P., Balletta, Eiber and Santucci, JJ., concur.