People v. Posner

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 9, 1995, convicting him of endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.

*482A defendant may not exercise peremptory challenges in such a manner as to purposefully exclude jurors who do not share the defendant’s race. Once a prima facie case is made that a defendant is exercising peremptory challenges in such a manner, the defendant must give nondiscriminatory explanations for such challenges (see, Batson v Kentucky, 476 US 79; People v Stiff, 206 AD2d 235, lv denied 85 NY2d 867, cert denied — US —, 116 S Ct 107). Any explanation need not rise to the level needed to sustain a challenge for cause (see, People v Allen, 86 NY2d 101,109; People v Stiff, supra). The reason may even be "ill-founded—so long as the reason does not violate equal protection” (People v Allen, supra, at 109). The proponent of the Batson challenge then has the burden of proving that the proffered reasons were pretexual (see, People v Richie, 217 AD2d 84).

In this case involving the maltreatment of children with behavioral or learning disabilities by an elementary school principal, the defendant challenged, inter alia, a prospective juror because that individual had a relative who worked in the same elementary school as one of the defendant’s relatives. This explanation has a bearing on the case at bar, and relates to a legitimate concern (see, People v Bailey, 200 AD2d 677, 678). Moreover, the explanation was race-neutral and no equal protection violation can be discerned from defense counsel’s challenge upon this basis. Accordingly, it was error for the trial court to have found that this race-neutral explanation was pretextual (see, People v Simmons, 79 NY2d 1013).

The defendant’s remaining contentions are without merit or need not be addressed. Miller, J. P., Hart and Florio, JJ., concur.