dissents and votes to reverse the judgment and order a new trial, with the following memorandum. In affirming this conviction, the majority is sustaining a verdict rendered by a jury selected in violation of a basic tenet of Batson v Kentucky (476 US 79), which is that race cannot be the reason for a peremptory challenge. The ultimate effect of such a determination is to permit a jury selection process in which the People’s peremptory challenge to a black juror was sustained despite the trial court’s finding that the People relied upon pretext when required to state a race-neutral explanation for the challenge. Because I believe that the judgment should be reversed and a new trial Ordered, I respectfully dissent.
After the People peremptorily challenged two out of three black venirepersons, the defense raised a Batson challenge. The trial court, over an objection by the People that the defense had failed to establish a prima facie showing of racial discrimination, directed the prosecutor to “give [the court] a neutral reason why you struck those two jurors”. At issue on appeal is the challenge to the second of the two venirepersons, juror number four. The prosecutor asserted that she peremptorily challenged juror number four because that juror was “making faces” at her, and because that juror’s tone was hostile when *701answering her questions. The trial court, noting, “[w]e must not have been listening and watching the same person because I didn’t see any faces or hear any hostile answers”, rejected such reasons as pretextual, holding, “[i]f that’s your reason for number 4, it’s denied and the juror will not be challenged”.
Given the trial court’s complete negation of the factual bases for the prosecutor’s proffered reasons for challenging juror number four, which concerned that juror’s appearance and demeanor, the finding of pretext, if reviewed on appeal, would have surely been sustained (see, People v Liang Jun Ying, 236 AD2d 630; People v Richie, 217 AD2d 84, 88). However, juror number four was not seated. After additional argument by the People, and further research during a recess, the trial court revisited and then reversed its step-one determination that a prima facie showing of racial discrimination had been established. Holding that a sufficient step-one showing had not been made, the trial court allowed the People’s peremptory challenge to stand, and dismissed juror number four. Because the trial court had already rendered a step-three determination as to pretext, the issue of whether or not a prima facie case of discrimination had been established was academic (see, People v Payne, 88 NY2d 172; People v Franklin, 248 AD2d 726; People v Jones, 204 AD2d 485). Thus, a peremptory challenge was improperly permitted to stand despite a finding that the proffered reasons therefor were pretextual (see, Batson v Kentucky, supra; People v Kern, 75 NY2d 638, cert denied 498 US 824). The majority avoids reaching this issue by characterizing various of the trial court’s rulings as merely “preliminary” and finding that in fact, no step-three determination was actually made (or was also merely a “preliminary finding”). However, at no time did the trial court expressly characterize any of its rulings as such, and I do not believe that a reasonable reading of the record supports such characterizations. Accordingly, I would reverse the judgment and remit the matter for a new trial.