(dissenting). Under Batson v Kentucky (476 US 79), the burden of establishing that they have not discriminated shifts to the People only after the defendant, "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose”, establishes a prima facie case of purposeful discrimination. (Supra, at 94, citing Washington v Davis, 426 US 229, 239-242.) Such a showing has not been made here. Defendant, who, along with his codefendant, exercised 19 peremptory challenges to exclude 15 white potential jurors and only 2 blacks, complains that after the exercise *234of the People’s peremptory strikes the potential jury was only 25% black in a county that was, according to the 1980 census, about 30% black. This is hardly a disproportionate ratio, even if the measurement to be applied is whether a jury is composed of the races in proportion to their ratio to the general population. Noteworthy also is that, having failed to make a prima facie showing of purposeful discrimination, defendant in his argument, both here and at nisi prius, inflated the purported percentage of blacks in Bronx County to be at least 50%, without offering any empirical data to support his contention. While a defendant obviously need not establish that all blacks were excluded before he can be said to have made a prima facie showing, he does not meet his burden by drawing an inference based on faulty statistics.
The People did not challenge 3 of the 10 blacks who constituted the original venire. Thus, defendant exercised his peremptory challenges on a higher percentage of whites than the People used to exclude blacks. In any event, leaving the potential jury with 25% of its panel members black (before defendant exercised his peremptory challenges) belies the statistical argument that the blacks challenged were purposefully excluded solely for reasons of race. Thus, I would affirm the judgment.
Even if the majority were correct in concluding that defendant made out a prima facie showing of discriminatory purpose, the People were not given the opportunity to articulate a neutral explanation for their exclusion of the challenged jurors. Under Batson, the People are entitled to this opportunity, and further proceedings are thus required before a reversal is dictated. (Supra, 476 US, at 100; see also, People v Hockett, 121 AD2d 878.) The majority summarily disposes of this requirement by noting that nine years have elapsed since the trial, and conjecturing about the improbability of reconstructing the voir dire. This is unfair to the People, particularly since, at the time defendant first raised the issue during the voir dire, they sought the opportunity to explain their challenges, stating, "Judge, if Mr. Bornstein would like me to go to the qualifications of each of the other jurors, I would go through them at this time.” The court did not afford the People the opportunity because it summarily rejected defendant’s argument. Perhaps the Assistant District Attorney, or at least her notes, are available for examination as to the reasons underlying the peremptory challenges.
Finally, the lapse of time since the 1979 trial, rather than *235militate against, weighs heavily in favor of affording the People an opportunity to be heard. The underlying crime is a very serious one. The proof of guilt was overwhelming. In view of the nine-year lapse, it is possible that some or all of the People’s witnesses would not be available, and even if they were, their ability to identify defendant might be significantly impaired.
Ross, J. (concurring in part and dissenting in part). I concur in part with the majority, and in part with the dissent, however, I would hold the appeal in abeyance and remand for a hearing with reference to "the totality of the relevant facts” and whether or not the relevant facts give "rise to an inference of discriminatory purpose” (Batson v Kentucky, 476 US 79, 94 [1986]).
Kupferman, J. P., and Carro, J., concur with Smith, J.; Sullivan, J., dissents in a separate opinion; Ross, J., concurs in part and dissents in part in a separate opinion.
Judgment, Supreme Court, Bronx County, rendered December 3, 1979, reversed, on the law, and a new trial ordered.