People v Rosado

2007 NY Slip Op 09525 [45 AD3d 508]

November 29, 2007

Appellate Division, First Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v SteveRosado, Appellant.

—[*1]Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), forrespondent.

Appeal from judgment, Supreme Court, New York County (Robert H. Straus, J.), renderedAugust 30, 2005, convicting defendant, after a jury trial, of rape in the second degree (fourcounts), rape in the third degree (four counts), and endangering the welfare of a child (twocounts), and sentencing him, as a second felony offender, to an aggregate term of41/3 to 11 years, held in abeyance, and the matter remanded for further proceedingspursuant to Batson v Kentucky (476 US 79 [1986]).

Defendant satisfied step one of Batson (a prima facie case of discrimination) byshowing that the prosecutor had exercised a peremptory challenge against every Hispanic panelistin the venire that remained available following the excusal of other venirepersons for cause or byconsent (see e.g. Johnson v California, 545 US 162, 173 [2005]; People vHernandez, 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 ofeight peremptory challenges, using half of them to eliminate the four Hispanic panelists, whereasthe 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 eventhough it was not accompanied by any other evidence.

Accordingly, we remand for completion of the Batson proceedings so that the Peoplecan offer ethnicity-neutral reasons for these challenges. Concur—Tom, J.P., Mazzarelli,Sullivan, Gonzalez and McGuire, JJ.