dissents in a memorandum as follows: If the purpose is to abolish the peremptory challenge (CPL 270.25, 360.30), then it should be done by the Legislature.
As I pointed out in my prior dissent in this matter (121 AD2d 878, 879), there were two blacks remaining on the jury, substantially representative of the community. There was no need to refer this matter for a hearing concerning discriminatory use of peremptory challenges.
Lawyers will tell you that the exercise of peremptory challenge is, many times, based on intuition, perception and a sixth sense derived from experience. How does one explain such a phenomenon?
Does this mean, for the purpose of analogy, that if 12 out of 17 peremptory challenges are used to excuse women from a jury, even though two remain, a hearing is required to be *395held? Will the People have to count to be sure that less than half of the permissible challenges are of any one race, sex or religion? The criminal justice system is already in enough trouble without having an additional burden placed upon it. The challenges in this case were not a violation of the rule laid down in Batson v Kentucky (476 US 79).