
    The People of the State of New York, Respondent, v Allan Bryant, Appellant.
   Case held, decision reserved, and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: On appeal from a judgment convicting him of rape in the first degree, defendant contends that the prosecutor impermissibly used a peremptory challenge to exclude the only prospective black juror (see, Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420). At his trial in 1983, before Batson was decided, defendant complained that the prosecutor’s peremptory challenge to the single black potential juror resulted in an all-white jury deciding whether defendant, a black man, had raped a white woman. The prosecutor gave no explanation for his use of the peremptory challenge. We find that defendant set forth a prima facie case of discrimination under Batson v Kentucky (supra) and remit the matter for a reconstruction hearing (see, People v Stevens, 145 AD2d 925; People v Lincoln, 145 AD2d 924). Although the Trial Judge has retired, he is available to be called as a witness at the hearing (see, People v Lincoln, supra). (Appeal from judgment of Erie County Court, Dillon, J. — rape, first degree.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.  