People v. Lopez

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered December 6, 1993, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

We find that the trial court erroneously rejected the defendant’s peremptory challenge of a prospective juror despite defense counsel’s articulation of nonpretextual, racially-neutral reasons for his challenge. Challenges by the defendant based on jurors’ "crime-victimization status” are not pretextual on their face, and they should not be regarded as pretextual in the absence of evidence that they are being applied in a discriminatory manner (see, People v Dixon, 202 AD2d 12 ; People v Taylor, 208 AD2d 967 ). In this case, the record does not support a finding that the defendant was using challenges based on victimization status in a discriminatory manner. Consequently, his peremptory challenge should not have been rejected.

For the foregoing reasons, the defendant was deprived of his right to a jury of his choice, and a new trial is required.

We have examined the defendant’s remaining contention and find it to be without merit. Rosenblatt, J. P., Altman, Friedmann and Florio, JJ., concur.