People v. Mims , 149 A.D.2d 948 ( 1989 )

— Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant appeals from a judgment of conviction of assault in the second degree and criminal possession of a weapon in the fourth degree. This is a resubmission of a prior appeal (People v Mims, 140 AD2d 929) in which we remitted the matter for a Batson reconstruction hearing (Batson v Kentucky, 476 US 79). We held that "defendant set forth facts sufficient for a prima facie showing that peremptory challenges were exercised in a racially discriminatory manner, thereby shifting the burden to the prosecutor to provide neutral explanations for her peremptory challenges” to two black veniremen (People v Mims, supra, at 930). Following the reconstruction hearing, County Court found that the prosecution had not used its peremptory challenges to exclude the veniremen on the basis of their race.

The prosecutor was unable to recall why she had exercised a peremptory challenge to one of the black veniremen. By failing to provide any justification for his exclusion, the People did not satisfy their burden of demonstrating a racially neutral explanation for exercising that peremptory challenge (People v Mitchell, 145 AD2d 967; see, People v Lawson, 145 AD2d 991; cf., People v Knight, 144 AD2d 1020). (Resubmission appeal from judgment of Erie County Court, Forma, J.—assault, second degree; criminal possession of weapon, fourth degree.) Present—Doerr, J. P., Denman, Boomer, Pine and Lawton, JJ.