Ordered that the case is remitted to the County Court, Nassau County, to hear and report on the prosecutor's exercise of peremptory challenges and the appeal held in abeyance in the interim. The County Court is to file its report with all convenient speed.
Following the completion of jury selection, defense counsel moved for a mistrial upon the ground that the prosecutor exercised peremptory challenges in order to strike the only two black members of the venire. The prosecutor responded that he had reasons for the exercise of peremptory challenges which were not founded upon race, and the court denied the motion.
Under the circumstances, the defendant made out a prima facie case of racial discrimination and the court should have required the prosecutor to articulate the reasons for challenging the two black veniremen (see, Batson v. Kentucky, 476 U.S. 79). Although Batson v. Kentucky (supra), was not yet decided when this case was tried, it must be given retroactive application (Griffith v Kentucky, 479 US ___, 107 S Ct 708). Accordingly, the matter is remitted for an evidentiary hearing, while we hold the appeal from the judgment of conviction in abeyance. Mangano, J.P., Bracken, Niehoff and Eiber, JJ., concur.