People v. Newman

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 23, 1989, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. By decision and order of this court dated May 28, 1991, the appeal was held in abeyance, and the matter was remitted to the Supreme Court, Kings County, to hear and report on the prosecutor’s exercise of peremptory challenges (see, People v Newman, 173 AD2d 743). The Supreme Court has filed its report. Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered. Following the evidentiary hearing directed by this court, the Supreme Court reported that the People failed to rebut the defendant’s prima facie showing of racial discrimination. The People have not opposed this finding and have consented to the defendant’s retrial. After reviewing the transcript of the evidentiary hearing, we agree with the finding of the Supreme Court that the prosecutor failed to rebut the defendant’s prima facie showing of racial discrimination (see, Batson v Kentucky, 476 US 79; People v Jenkins, 75 NY2d 550). In light of our determination, we need not address the defendant’s remaining contentions. Kunzeman, J. P., Balletta, Miller and O’Brien, JJ., concur.