author: Hancock, Jr., J.

text:
    Francene Rastelli, as Administratrix of the Estate of John A. Wunderlich, Deceased, Respondent, v Goodyear Tire & Rubber Company, Appellant, et al., Defendants.
    Argued February 12, 1992;
    decided March 31, 1992

      POINTS OF COUNSEL

      Alan D. Kaplan, James A. Gallagher, Jr., and Edward M. O’Brien for appellant. I.
    The tort theory of concert of action has never before been applied to a products liability action in New York where plaintiff could identify the manufacturer of the actual product, nor has this State adopted it for use in cases involving unidentifiable manufacturers. Accordingly, the failure of the court below to dismiss the causes of action based on this theory was improper as a matter of law. (Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944; Morrissey v Conservative Gas Corp., 285 App Div 825, 1 NY2d 741; De Carvalho v Brunner, 223 NY 284; Hall v Du Pont De Nemours & Co., 345 F Supp 353; Bichler v Lilly & Co., 79 AD2d 317; Kaufman v Lilly & Co., 65 NY2d 449; Schaeffer v Lilly & Co., 113 AD2d 827; Walicki v Mik-Lee Food Stores, 144 Misc 2d 156; Catherwood v American Sterilizer Co., 139 Misc 2d 901, 148 AD2d 985.) II. Since Goodyear did not manufacture or market the rim which allegedly caused the subject accident, the court below improperly failed to dismiss plaintiff-respondent’s strict liability-based causes of action. (Watford v Jack LaLanne Long Is., 151 AD2d 742; Smith v City of New York, 133 AD2d 818.) III. Product manufacturers should not be required to warn about "inherent” dangers of a separate product manufactured by another company, which is alleged to have caused the subject accident. Accordingly, the failure of the court below to dismiss all warning based claims was in error. (Gaeta v New York News, 62 NY2d 340; Baughman v General Motors Co., 780 F2d 1131; Blackburn v Johnson Chem. Co., 128 Misc 2d 623; Hansen v Honda Motor Co., 104 AD2d 850; Gifaldi v Dumont Co., 172 AD2d 1025; Leahy v Mid-West Conveyor Co., 120 AD2d 16.)

      Susan Corcoran for respondent. I.
    Concerted action liability is properly applied where manufacturers’ actions affirmatively assist in keeping a competitor’s known, dangerously defective product in the stream of commerce. (Jackson v Firestone Tire & Rubber Co., 788 F2d 1070; Hall v Du Pont De Nemours & Co., 345 F Supp 353; Marshall v Celotex Corp., 652 F Supp 1581.) II. If Goodyear is accountable under concerted action liability, then it is accountable in strict products liability. (Brumbaugh v CEJJ, Inc., 152 AD2d 69; Blackburn v Johnson Chem. Co., 128 Misc 2d 623.) III. Goodyear is liable on the separate ground that it manufactured the tire that was inherently dangerous and defective for failure to carry a warning. (Voss v Black & Decker Mfg. Co., 59 NY2d 102.) IV. There is no First Amendment right of a manufacturer to lie to or to conceal relevant information from a Federal regulatory agency. (California Transp. v Trucking Unlimited, 404 US 508; Senart v Mobay Chem. Corp., 597 F Supp 502; Braniff Airways v Curtiss-Wright Corp., 411 F2d 451.) V. No issue in this case is so simple that summary judgment can be granted before affording plaintiff adequate disclosure.

      John Lawler Hash, of the North Carolina Bar, admitted pro hac vice, and Michael C. Hayer, of the Washington, D.C., Bar, admitted pro hac vice, for Association of Trial Lawyers of America, amicus curiae.

      Sheila L. Birnbaum, Barbara Wrubel and Douglas W. Dun-ham for Product Liability Advisory Council, Inc., amicus curiae. I.
    The court below erroneously held that a claim for concerted action can lie against Goodyear under New York law. (Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944; Pulka v Edelman, 40 NY2d 781; Palsgraf v Long Is. R. R. Co., 248 NY 339; Waters v New York City Hous. Auth., 69 NY2d 225; MacPherson v Buick Motor Co., 217 NY 382; Carrier v Riddell, Inc., 721 F2d 867; Baughman v General Motors Corp., 780 F2d 1131; De Carvalho v Brunner, 223 NY 284; Hanrahan v Cochran, 12 App Div 91; Bradley v Firestone Tire & Rubber Co., 590 F Supp 1177.) II. The efforts of Goodyear and other rim assembly manufacturers to influence government regulatory agencies cannot be the basis of concerted action liability for the further reason that such conduct is constitutionally protected. (Eastern R. R. Conference v Noerr Motor Frgt., 365 US 127; Brownsville Golden Age Nursing Home v Wells, 839 F2d 155; Video Intl. Prod. v Warner-Amex Cable Communications, 858 F2d 1075, cert denied sub nom. City of Dallas v Video Intl. Prods., 490 US 1047; Senart v Mobay Chem. Corp., 597 F Supp 502; Boone v Redevelopment Agency, 841 F2d 886; California Transp. v Trucking Unlimited, 404 US 508; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Karaduman v Newsday, Inc., 51 NY2d 531; New York Times Co. v Sullivan, 376 US 254.) III. None of the equitable considerations that have prompted courts in some products liability cases to resort to expanded industrywide theories of recovery, including concerted action, are present in this case. (Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944; Catherwood v American Sterilizer Co., 139 Misc 2d 901, 148 AD2d 985, 74 NY2d 791; Beasock v Dioguardi Enters., 130 Misc 2d 25, 117 AD2d 1015; Walicki v Mik-Lee Food Stores, 144 Misc 2d 156; Schaeffer v Lilly & Co., 113 AD2d 827; Marshall v Celotex Corp., 652 F Supp 1581; Hall v Du Pont De Nemours & Co., 345 F Supp 353.) IV. The court below erroneously concluded that Goodyear could be held liable for not placing a warning on its tires about alleged dangers in the multipiece rim assembly at issue, which Goodyear neither manufactured nor sold. (Codling v Paglia, 32 NY2d 330; Howard v Poseidon Pools, 72 NY2d 972; Alfieri v Cabot Corp., 17 AD2d 455, 13 NY2d 1027; Grzesiak v General Elec. Co., 68 NY2d 937; Baughman v General Motors Corp., 780 F2d 1131.)

      Daniel J. Popeo, Richard K. Willard, Thomas M. Barba, Thomas M. Koutsky and Paul D. Kamenar, of the Washington, D.C., Bar, admitted pro hoc vice, for Washington Legal Foundation, amicus curiae. I.
    The decision below creates a new and expansive theory of products liability which will result in the imposition of industrywide liability for manufacturers of similar products. (Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944; Bradley v Firestone Tire & Rubber Co., 590 F Supp 1177; Rastelli v Goodyear Tire & Rubber Co., 165 AD2d 111; Hall v Du Pont De Nemours & Co., 345 F Supp 353.) II. This expansive application of concert-of-action liability would create perverse incentives throughout the economic system.
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiffs decedent was killed while inflating a truck tire, manufactured by Goodyear, when the multipiece tire rim, not manufactured by Goodyear, separated explosively. The issues are whether (1) Goodyear may be subject to concerted action liability under the alleged facts in this product liability action and (2) Goodyear has a duty to warn against its nondefective tire being used with an allegedly defective tire rim manufactured by others. For the reasons stated below, we conclude that plaintiff’s claims under both theories of liability should be dismissed. Accordingly, we reverse the order of the Appellate Division.

I

In June 1984, John Wunderlich was inflating a tire on his employer’s 1970 Chevrolet dump truck when the multipiece tire rim, upon which the tire was mounted, violently flew apart. A piece of the rim struck Wunderlich in the head, killing him instantly.

Multipiece rims are not a uniform product. The tire, manufactured by defendant Goodyear Tire & Rubber Company, was compatible for use on some but not all multipiece rim assemblies. The particular rim assembly involved in this case was an RH5 degree (RH5) model, consisting of a side or locking ring marked "Firestone, 20 X 6.0, RH5” and a rim base marked "K-H” for the Kelsey-Hayes Company. The Appellate Division concluded that Goodyear neither manufactured nor sold the subject rim or its parts (165 AD2d 111, 114). Moreover, Goodyear’s proof that it never has been a manufacturer or marketer of the RH5 rim assembly model or its component parts is not disputed by anything in the record.

In August 1985, plaintiff Francene Rastelli, as administratrix of the decedent’s estate, brought suit for decedent’s pain and suffering and wrongful death against Goodyear, Firestone Tire and Rubber Company, Kelsey-Hayes Company, and the Budd Company (the manufacturers of substantially all multipiece tire rims produced in the United States). The complaint sets forth causes of action based upon four theories of liability: (1) negligence, (2) strict products liability, (3) breach of warranty, and (4) concerted action. Goodyear moved for summary judgment based upon proof that it had not designed, manufactured or marketed any part of the rim involved in decedent’s accident. Supreme Court denied Goodyear’s motion, with leave to renew after the completion of discovery. The Appellate Division modified by reversing to the extent of granting Goodyear summary judgment on the breach of warranty claims, and otherwise affirmed the denial of summary judgment on the concerted action, strict products liability and negligence claims.

The Appellate Division held that plaintiff’s failure to counter the proof that Goodyear did not manufacture or market any part of the rim defeated her breach of warranty claims. However, it concluded that plaintiff’s submissions for her concerted action claims "were sufficient to demonstrate that further discovery may disclose an express agreement or tacit understanding among Goodyear * * * and the other major manufacturers of multipiece truck tire rims to prevent public awareness of the extreme propensity of all such rims to explode, and to block governmental action which would have required the manufacturers to recall the products” (165 AD2d 111, 115, supra [emphasis in original]). The court also held that plaintiffs negligence and strict products liability claims set forth an alternative basis for liability not dependent on establishing that Goodyear manufactured the rim. Specifically, it stated that plaintiffs allegations that the subject Goodyear tire was made exclusively for use on inherently dangerous multipiece rims "could support recovery based upon Goodyear’s failure to warn of the dangers of using its tires with multipiece rims” (id., at 116).

Goodyear appeals pursuant to leave granted by the Appellate Division, arguing (1) that the tort theory of concerted action is not applicable in this products liability case and (2) product manufacturers should not be required to warn about the inherent dangers of a separate product manufactured by another company. We address Goodyear’s arguments in that order.

II

The theory of concerted action "provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in 'a common plan or design to commit a tortious act’ ” (Hymowitz v Lilly & Co., 73 NY2d 487, 506 [quoting Prosser and Keeton, Torts § 46, at 323 (5th ed)]; see, Bichler v Lilly & Co., 55 NY2d 571, 580-581; De Carvalho v Brunner, 223 NY 284; Restatement [Second] of Torts § 876). It is essential that each defendant charged with acting in concert have acted tortiously and that one of the defendants committed an act in pursuance of the agreement which constitutes a tort (see, Prosser and Keeton, op. cit., at 324). Parallel activity among companies developing and marketing the same product, without more, we have held, "is insufficient to establish the agreement element necessary to maintain a concerted action claim” (Hymowitz v Lilly & Co., supra, at 506).

In Hymowitz, this Court declined to adopt a modified version of concerted action, holding that inferring agreement from the common occurrence of parallel activity alone would improperly expand the concept of concerted action beyond a rational or fair limit (id., at 508). We explained that because application of concerted action renders each manufacturer jointly liable for all damages stemming from any defective product of an entire industry, parallel activity by manufacturers is not sufficient justification for making one manufacturer responsible for the liability caused by the product of another manufacturer (see, id.; Bichler v Lilly & Co., supra, at 581). Accordingly, v/e must determine here whether plaintiff has made any showing that the rim manufacturers engaged in more than parallel activity and, if not, whether the circumstances warrant expanding the concerted action theory so that it applies in this case.

In opposition to Goodyear’s motion for summary judgment dismissing the concerted action claims, plaintiff alleged that Goodyear engaged in concerted action with Firestone, Kelsey-Hayes and Budd “to perpetuate the use of the deadly multipiece rims, to prevent Government implementation of appropriate safety standards and to prevent a recall.” More specifically, plaintiff alleged that the rim manufacturers took the following actions: campaigned through their trade association for OSHA to place the responsibility for safety precautions on truck maintenance employers and not on the manufacturers, decided not to issue warnings, lobbied successfully against a proposed ban on the production of all multipiece rims, and declined to recall the RH5 multipiece rim voluntarily.

These allegations and the exhibits plaintiff submitted to support them show parallel activity by the rim manufacturers. But they do not raise an issue of fact as to whether the rim manufacturers were parties to an agreement or common scheme to commit a tort. Indeed, plaintiff’s affirmation in opposition to Goodyear’s motion for summary judgment states no more than that ”[t]he events described show parallel actions by the manufacturers”. Thus, under Hymowitz, plaintiff’s showing of the common occurrence of parallel activity among companies manufacturing the same product is insufficient to establish a concerted action claim because parallel activity does not constitute the required agreement between the companies (Hymowitz v Lilly & Co., 73 NY2d 487, 506, supra). Moreover, not only must the manufacturers have engaged in more than parallel activity, but their activity must also have been tortious in nature. Plaintiff failed to provide any evidence that the rim manufacturers’ lobbying activities were tortious.

We see no reason in this case for extending the concerted action concept to create industrywide liability and make recovery possible when, as here, plaintiff alleges only parallel activity; indeed, plaintiff does not argue that we should do so (see generally, Cummins v Firestone Tire & Rubber Co., 344 Pa Super 9, 495 A2d 963 [concerted action claim not maintainable in multipiece rim case]; Tirey v Firestone Tire & Rubber Co., 33 Ohio Misc 2d 50, 513 NE2d 825 [same]; Bradley v Firestone Tire & Rubber Co., 590 F Supp 1177 [WD SD] [same]; but see, Cousineau v Ford Motor Co., 140 Mich App 19, 363 NW2d 721 [concerted action claim maintainable]). For the above reasons, we conclude that Goodyear may not be held liable under the concerted action theory for the alleged defective product of another where, as here, no more than parallel activity was shown.

Ill

Plaintiffs alternative theory of recovery sounds in negligence and strict products liability. She alleges that the subject Goodyear tire was made for installation on a multipiece rim, that Goodyear was aware of the inherent dangers of using its tires in conjunction with such rims and, thus, that Goodyear had a duty to warn of the dangers resulting from such an intended use of its tires. Plaintiff does not claim that the subject tire was defective. Her claim is based only on the fact that the particular Goodyear tire could be used with multipiece rims which had their own alleged inherent defects.

We have held that a plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product (see, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107; Torrogrossa v Towmotor Co., 44 NY2d 709; Wolfgruber v Upjohn Co., 72 AD2d 59, 62, affd 52 NY2d 768). A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which it knew or should have known (see, Cover v Cohen, 61 NY2d 261, 275; Alfieri v Cabot Corp., 17 AD2d 455, 460, affd 13 NY2d 1027; Donigi v American Cyanamid Co., 57 AD2d 760, affd 43 NY2d 935; 1 Weinberger, New York Products Liability § 18:04; see also, Grzesiak v General Elec. Co., 68 NY2d 937).

Under the circumstances of this case, we decline to hold that one manufacturer has a duty to warn about another manufacturer’s product when the first manufacturer produces a sound product which is compatible for use with a defective product of the other manufacturer. Goodyear had no control over the production of the subject multipiece rim, had no role in placing that rim in the stream of commerce, and derived no benefit from its sale. Goodyear’s tire did not create the alleged defect in the rim that caused the rim to explode. Plaintiff does not dispute that if Goodyear’s tire had been used with a sound rim, no accident would have occurred (see, Lytell v Goodyear Tire & Rubber Co., 439 So 2d 542 [La Ct App]).

This is not a case where the combination of one sound product with another sound product creates a dangerous condition about which the manufacturer of each product has a duty to warn (see, Ilosky v Michelin Tire Corp., 307 SE2d 603 [W Va]). Nothing in the record suggests that Goodyear created the dangerous condition in this case. Thus, we conclude that Goodyear had no duty to warn about the use of its tire with potentially dangerous multipiece rims produced by another where Goodyear did not contribute to the alleged defect in a product, had no control over it, and did not produce it (see, Gifaldi v Dumont Co., 172 AD2d 1025; Hansen v Honda Motor Co., 104 AD2d 850; Baughman v General Motors Corp., 780 F2d 1131 [4th Cir]; Spencer v Ford Motor Co., 141 Mich App 356, 367 NW2d 393; Mitchell v Sky Climber, 396 Mass 629, 487 NE2d 1374).

Accordingly, the order of the Appellate Division should be reversed, with costs; defendant Goodyear’s motion for summary judgment dismissing the amended complaint and all cross claims against it should be granted; and the question the Appellate Division certified to this Court should be answered in the affirmative.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order reversed, etc.

      . The record indicates that the subject tire could be used with 24 different models of multipiece rims, out of the approximately 200 types of multipiece rims sold in the United States. The tire comported with size standards published by the Tire and Rim Association.

      . Plaintiff argued for the first time on appeal that the tire was defective because it contained no warnings against using the tire in an underinflated condition or not inflating the tire in a protective Cage. This claim was not raised in Supreme Court, has no support in the record, was not addressed by the Appellate Division and, thus, cannot be considered by this Court. Moreover, plaintiff does not claim that such allegedly dangerous conditions caused the accident in this case.


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    In the Matter of DES Market Share Litigation.
    Argued February 19, 1992;
    decided March 31, 1992

      POINTS OF COUNSEL

      Kenneth A. Cohen, Marshall Simonds, Robert W. Keller, Jay P. Mayesh and David M. Covey for Eli Lilly and Company and another, appellants. I.
    Plaintiffs have no right to a jury trial because the market share doctrine is equitable in nature. (Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19; Van Rensselaer v Van Rensselaer, 113 NY 207; Independent Church of Realization of Word of God v Board of Assessors, 72 AD2d 554; Matter of Britton, 187 Misc 70; Bichler v Lilly & Co., 79 AD2d 317; Kaplan v Long Is. Univ., 116 AD2d 508; Bell v Merrifield, 109 NY 202; Seneca v Novaro, 80 AD2d 909; United States Trust Co. v United States Fire Ins. Co., 18 NY 199; Pine Cliffs Farms v Collier, 92 Misc 269.) II. In a proceeding that will determine market shares in hundreds of cases with hundreds of parties, requiring thousands of interrelated factual findings, the trial court correctly held that no jury is required. (In re Japanese Elec. Prods. Antitrust Litig., 631 F2d 1069; ILC Peripherals Leasing Corp. v International Business Machs. Corp., 458 F Supp 423, affd sub nom. Memorex Corp. v International Business Machs. Corp., 636 F2d 1188, 452 US 972; Fowle v Lawrason, 5 Pet [30 US] 495.)

      Charles J. Walsh, Stuart M. Feinblatt, Theodore V. H. Mayer, Carl H. Sword, Jr., Paul K. Stecker, Tamar P. Halpern, Leslie A. McHugh and Karl E. Seib, Jr., for E. R. Squibb & Sons, Inc., and others, appellants. I.
    Plaintiffs have no right to a jury trial in this proceeding because market share is a preliminary issue properly triable to the court. (Matter of Cook, 244 NY 63; Matter of Erlanger, 136 Misc 784, 229 App Div 778; Bux v Robinson, 13 AD2d 912; Shippey v Berkey, 6 AD2d 473.) II. The market share issues should be analyzed separately for jury trial purposes. (Glenn v Lancaster, 109 NY 641; Tober v Schenectady Sav. Bank, 54 AD2d 1049; Compact Electra Corp. v Connell, 46 AD2d 649; Grant v Guidotti, 67 AD2d 736; Marable v Robinson, 114 Misc 2d 437; Rill v Darling, 44 Misc 2d 174; Motor Vehicle Mfrs. Assn. v State of New York, 75 NY2d 175; Cowper Co. v Buffalo Hotel Dev.

      Venture, 99 AD2d 19; Independent Church of Realization of Word of God v Board of Assessors, 72 AD2d 554.) III. There is no right to a jury trial here because the market share issues, similar to long accounts, require analysis of numerous complex transactions, primarily presenting issues of computation, which would be difficult or impossible for a conscientious jury to comprehend. (Steck v Colorado Fuel & Iron Co., 142 NY 236; Schanback v Schanback, 130 AD2d 332; Brooklyn Pub. Lib. v City of New York, 240 NY 465; People v Wood, 121 NY 522; Starace v Cimenti, 75 Misc 2d 668; City of Poughkeepsie v Poughkeepsie Associated Fire Dept., 125 AD2d 522; Longo v Adirondack Drilling, 14 AD2d 476; Glass v Thompson, 51 AD2d 69.)

      William D. Fireman and Stuart A. Schlesinger for respondents.
    Plaintiffs are constitutionally and statutorily entitled to a trial by jury of the issues to be decided in the DES Market Share trial. (Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19; Independent Church of Realization of Word of God v Board of Assessors, 72 AD2d 554; Ives v South Buffalo Ry. Co., 201 NY 271; Wheelock v Lee, 74 NY 495; Matter of Townsend, 39 NY 171; Gerard v Inglese, 11 AD2d 381; McGurty v Delaware, Lackawanna & W. R. R. Co., 172 App Div 46; Glenn v Lancaster, 109 NY 641; People v Hamlin, 131 AD2d 200, 71 NY2d 750; Shippey v Berkey, 6 AD2d 473.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In Hymowitz v Lilly & Co. (73 NY2d 487, 507), this Court, recognizing that "extant common-law doctrines, unmodified, provide no relief for the DES plaintiff unable to identify the manufacturer of the drug that injured her,” adopted a market share theory to create a "realistic avenue of relief for plaintiffs injured by DES.” Since our decision in that case three years ago, Supreme Court, Erie County, has issued an order severing the market share issue from every DES case pending in New York and consolidating these actions so that the market share issue can be resolved in a single proceeding. The question now before us is whether the DES plaintiffs are entitled to a jury trial on the issue of market share. We agree with the Appellate ¡.Division that plaintiffs have a constitutional right to a jury in the market share trial and consequently affirm.

As we noted in Bichler v Lilly & Co. (55 NY2d 571, 576) and in Hymowitz, diethylstilbestrol or DES is a synthetic substance that duplicates the activity of estrogen, a naturally formed female hormone. DES was invented by British researchers in 1937, but it was never patented. It was therefore available for production by any pharmaceutical company that obtained the requisite Food and Drug Administration (FDA) approval.

In 1941, the FDA approved the new drug applications (NDAs) of 12 drug manufacturers to market DES for a variety of ailments not related to pregnancy. In 1947, the FDA began to approve the NDAs of drug manufacturers who sought to market DES for the prevention of human miscarriages. By 1951, the FDA had concluded that the drug was generally safe for use during pregnancy and ceased to require that an NDA be submitted by a drug manufacturer when it wanted to market DES for that purpose. In 1971, however, the FDA banned the use of the drug for the treatment of problems of pregnancy after studies indicated that DES caused vaginal adenocarcinoma, a rare disease involving cancerous growth in glandular tissue, and adenosis, a precancerous vaginal or cervical growth, in the daughters of women who took DES during pregnancy. In New York State alone it has been estimated that more than 100,000 women were injured by exposure to DES in útero (Bichler v Lilly & Co., supra, at 577).

In Hymowitz, we detailed the formidable obstacles that make traditional legal recovery a virtual impossibility for many DES plaintiffs. Foremost among these is the plaintiffs’ difficulty in identifying the manufacturer of the DES ingested in a particular case. Because all DES produced had the identical chemical composition, druggists often filled prescriptions with whatever drug was available. Approximately 300 companies produced the drug for pregnancy use, but during the relevant time period, drug companies both entered and left the market. These problems were only exacerbated by the long latency period for DES injuries. As we stated in Hymowitz, "the pregnant women who took DES generally never knew who produced the drug they took, and there was no reason to attempt to discover this fact until many years after ingestion, at which time the information is not available” (id., at 503).

In our effort to address this critical problem of proof unique to DES cases, we examined the common-law doctrines of alternative liability and concerted action and concluded that these doctrines, unaltered, would not afford relief to DES plaintiffs (id., at 505). Next, we looked for guidance to other State courts that had already considered the identification dilemma faced by DES plaintiffs (id., at 509-511). Based on our survey of the various approaches taken by other State courts and our appreciation for the realities of mass tort litigation in this State, we concluded that a market share theory, based on a national market, was the best solution to the identification problem unique to DES cases (id., at 511). Under that theory, each defendant who marketed DES for pregnancy use was to be held liable according to that manufacturer’s market share.

In choosing to adopt a national market share theory as a matter of New York law, we stated that "[u]se of a national market is a fair method * * * of apportioning defendants’ liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs’ injuries among defendants” (id., at 512). Only those defendants who did not participate in the marketing of DES for pregnancy use would not be held liable for a particular plaintiff’s injury. "[B]ecause liability * * * is based on the over-all risk produced, and not causation in a single case, there should be no exculpation of a defendant who, although a member of the market producing DES for pregnancy use, appears not to have caused a particular plaintiff’s injury” (id., at 512).

After Hymowitz, the market share issue remained to be litigated. By order filed April 4, 1990, the DES market share issue in the cases pending in the New York courts was severed, consolidated for the purpose of discovery and trial, and venued in Erie County. The trial court entered a case management order in August of 1990 in which it provided that certain motions could be filed within 45 days of entry, including a motion addressing whether any of the parties had a right to a jury trial. By notice of motion dated August 31, 1990, plaintiffs’ liaison counsel requested an order granting a jury trial of the market share issue.

In a decision dated March 8, 1991, this motion was denied. Calling the market share theory a newly created remedy unknown at common law, the trial court concluded that the plaintiffs had neither a constitutional nor a statutory right to a jury trial. Further, the trial court held that the market share trial was not itself a cause of action, but was more in the nature of a pretrial proceeding. Because causation and damages would be tried to a jury in the main action, the court determined that there was no right to a jury trial of the severed market share issue.

The Appellate Division reversed, with two Justices dissenting. The majority held that Hymowitz had not created a new equitable remedy, as the defendants urged; instead, it brought about the modification of a preexisting legal cause of action (171 AD2d 352, 354). Because the essential nature of each DES case was a cause of action at law to recover money damages for personal injury, the plaintiffs were entitled to a jury trial under article I, § 2 of the New York Constitution. The dissenters by contrast termed the market share issue preliminary and collateral and reasoned that no right to a jury trial attached.

Article I, §2 of the New York Constitution provides that "[tjrial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever.” The express language of this provision exhorts us to consider as an historical matter the types of actions to which the right to a jury trial has traditionally attached (see, Motor Vehicle Mfrs. Assn. v State of New York, 75 NY2d 175, 180). The first Constitution, that of 1777, guaranteed a right to trial by jury in all cases in which it had "heretofore been used” (NY Const of 1777, art XLI). The effect of this language was to constitutionalize the right to a jury trial as it existed in the common law at that time (see, Motor Vehicle Mfrs. Assn. v State of New York, supra, at 181; Matter of Luria, 63 Misc 2d 675, 677; see also, Siegel, NY Prac § 377). The Constitutions of 1821, 1846 and 1894 contained similar language guaranteeing the right to a jury trial in all cases as it had "heretofore been used”; the result of the continuation of this broad "heretofore” language was to accord constitutional significance to those cases in which the right to a jury trial had been guaranteed by statute between 1777 and 1894 (see, Matter of Luria, supra, at 677). The 1938 Constitution narrowed the "heretofore” clause to grant the right to a jury trial only as it was "heretofore * .* * guaranteed by constitutional provision” (emphasis added). This change in language thus guarantees a jury trial (1) in all those cases to which it would have traditionally been afforded under the common law before 1777, and (2) in all cases to which the Legislature by statute extended a right to a jury trial between 1777 and 1894 (Motor Vehicle Mfrs. Assn. v State of New York, supra, at 181; 4 Weinstein-KornMiller, NY Civ Prac 4101.08). In addition, it has been held that the right to a jury trial is not strictly limited to those instances in which it was actually used in 1894, but also extends to new cases that are analogous to those traditionally tried by a jury (Colon v Lisk, 153 NY 188, 193; Independent Church of Realization of Word of God v Board of Assessors, 72 AD2d 554).

This right to a jury trial is additionally codified in CPLR 4101. CPLR 4101 (1) provides that "issues of fact * * * [in] an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only” are triable to a jury. This subdivision, which has its origins in a pre-1894 statute (Code Civ Pro § 968 [L 1876, ch 448, § 968]), encompasses the largest group of actions triable to a jury at common law before 1777 and has been held to include actions in tort and contract (4 Weinstein-Korn-Miller, NY Civ Prac fl 4101.11).

In the case now before us, the DES plaintiffs have the right to a jury trial on the merits of their personal injury claims because these causes of action are for money damages and would have been tried by a jury at common law. The question that remains is whether the severance and consolidation of the market share inquiry in one court converts an examination of the defendants’ relative culpability into a wholly separate equitable proceeding to which no right to a jury trial attaches.

The defendants argue that in adopting a market share theory in Hymowitz, this Court created a new equitable remedy, unknown in the common law, that absolved DES plaintiffs from identifying the particular product that caused their injury and that apportioned liability in accordance with overall culpability. In support of their argument, the defendants point to our use of the word "equitable” to describe our decision to use a market share theory in DES cases (Hymowitz v Lilly & Co., at 508 ["(w)e turn then to the question of how to fairly and equitably apportion the loss occasioned by DES” (emphasis added)], at 512 ["this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs’ injuries among defendants” (emphasis added)]). They argue that this use of the word "equitable” signalled that litigation of the market share issue was akin to a traditional action in equity, and that consequently no right to a jury trial attached as a constitutional matter.

When we used the word "equitable” in Hymowitz, we were not categorizing the market share theory; rather, we were indicating the extent to which our decision was compelled by simple fairness. We adopted a market share theory because, as we noted at the time, "the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, requireld] formation of a remedy for injuries caused by DES” (id., at 507).

Our decision to adopt a market share theory in DES cases can be compared to our recognition of strict products liability in Codling v Paglia (32 NY2d 330). Both were responses to gaps in traditional tort doctrines that left unprotected an entire class of plaintiffs whose real and substantial injuries were the product of the ever-increasing complexity of modern society. In Codling v Paglia, we stated that "[t]he dynamic growth of the law in this area has been a testimonial to the adaptability of our judicial system and its resilient capacity to respond to new developments, both of economics and of manufacturing and marketing techniques” (id., at 339). Codling v Paglia and Hymowitz both represent efforts to "achieve the ends of justice in a more modern context” (see, People v Hobson, 39 NY2d 479, 489), but a concern for justice does not necessarily signal the creation of an equitable remedy.

Hymowitz simply relaxed the DES plaintiffs’ burden of proof on that portion of the causation requirement which would have obligated the plaintiffs to establish the identity of the manufacturer of the drug their mothers ingested. It did not create a new equitable cause of action, as defendants contend. At common law, a plaintiff is required to introduce evidence that provides a reasonable basis for concluding that the defendant’s conduct was a cause in fact of the plaintiff’s injury (see, Prosser and Keeton, Torts § 41, at 269-272 [5th ed]). Before Hymowitz, identification of the manufacturer responsible for a given injury would have been part of the plaintiff’s over-all burden on the issue of causation. As noted above, the virtual impossibility of identifying the manufacturer of the drug taken by a particular DES mother has made this burden insurmountable for many plaintiffs. In Hymowitz we acknowledged the inadequacy of existing common-law doctrines and modified traditional causation-in-fact requirements to address the problems of proof confronted by DES plaintiffs.

The market share inquiry takes the place of the requirement that the plaintiffs identify the manufacturer of the drug ingested by their mothers. To claim that identity is no longer an issue in these cases is overly simplistic, however. True, the focus of the inquiry into identification has shifted as a result, of the Hymowitz decision. Plaintiffs will not be penalized for their inability to identify a particular manufacturer; instead, the trier of fact will be required to determine which defendants were in the pregnancy market from 1947-1971 and their market share for each of these years and for each relevant dosage. This will establish the over-all risk produced in a given year and will act as a substitute for identification in each individual case (id., at 512). Once the various percentages have been tabulated and the individual market shares determined, the causation-in-fact requirement imposed by Hymowitz will have been satisfied. Until then, however, identification remains an issue in the case, albeit in a modified form, and will only be resolved in the context of the market share trial.

We similarly reject the argument that the market share trial is a preliminary issue, relating to the parties’ status, that does not trigger the plaintiffs’ right to a jury trial (see, e.g., Shippey v Berkey, 6 AD2d 473, 475; Bux v Robinson, 199 NYS2d 619, 621, revd on other grounds 216 NYS2d 2, lv denied 13 AD2d 912). Identification of the exact defendant who produced the product that injured the plaintiff is normally required in a products liability action, as noted above (Hymowitz v Lilly & Co., supra, at 504 [citing Morrissey v Conservative Gas Corp., 285 App Div 825, affd 1 NY2d 741; Prosser and Keeton, Torts § 103, at 713 (5th ed)]). The plaintiffs no longer need to make this showing. They will, however, present evidence to establish the relevant market shares for each of the years that DES was marketed for pregnancy use. By all accounts, market share remains a hotly contested issue, with both sides planning to present a number of competing experts. The trier of fact will weigh the credibility of each expert and the validity of their models and statistics in its resolution of the market share issue. The market share percentages for each of the 24 years and the concomitant determination of each defendants’ ultimate culpability will dictate the ability of all plaintiffs to recover damages in their main actions. It is therefore difficult to conceive how the market share issue can be denominated as either preliminary or collateral.

Thus, because we agree with the Appellate Division that market share is an issue in the plaintiffs’ cause of action for money damages and not a separate cause of action, plaintiffs are entitled to a jury trial by virtue of article I, § 2 of the New York Constitution and CPLR 4101. Although the Trial Judge had the power to sever and consolidate the market share issue for the sake of judicial economy, he did not have the added power to defeat the plaintiffs’ right to a jury trial.

Because of our holding that adoption of the market share theory did not create a new equitable remedy or cause of action, but instead modified an existing common-law remedy, we need not consider defendants’ arguments that the market share theory is analogous to a long account, a bill of peace or equitable contribution. We would simply note that we do not accept the defendants’ argument that the sheer complexity of the market share proceeding converts it into an equitable cause of action as a matter of law. This conclusion would have enormous ramifications in the area of complex litigation and is completely unwarranted under the facts of this case. Market share is a discrete legal issue that is an integral part of the plaintiffs’ cause of action in tort for money damages. Since the issue is so clearly legal in nature, we decline to hold that the complexity of its resolution alone magically transforms it into an equitable matter that can defeat the plaintiffs’ constitutional right to a trial by jury.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Bellacosa taking no part.

Order affirmed, etc.


author: Kaye, J. Titone, J.

text:
    The People of the State of New York, Appellant, v Bryan Smith, Respondent.
    Argued January 10, 1992;
    decided April 2, 1992

      POINTS OF COUNSEL

      Kevin M. Dillon, District Attorney (Eleanor T Kubiniec and John J. DeFranks of counsel), for appellant.
    Defendant’s conviction for robbery in the first degree was based upon legally sufficient evidence. (People v Chessman, 75 AD2d 187; People v Bracey, 41 NY2d 296; People v Woods, 41 NY2d 279; People v Zagorski, 135 AD2d 594; People v McAllister, 154 AD2d 402.)

      David C. Schopp, Linda S. Reynolds and Barbara J. Davies for respondent.
    The evidence was insufficient to support respondent’s convictions of robbery in the first degree and unauthorized use of a motor vehicle in the first degree. (People v Nixon, 156 AD2d 144, 76 NY2d 870; People v Chessman, 75 AD2d 187, 54 NY2d 1016; People v Lopez, 58 AD2d 516; People v Davis, 160 AD2d 467; People v Rudelt, 6 AD2d 640; People v McAllister, 154 AD2d 402.)
   OPINION OF THE COURT

Kaye, J.

In this appeal from a conviction for robbery in the first degree, we must determine whether the robbery statute required proof that the defendant intended that his threatened use of force would compel the victim to deliver up her property or overcome resistance to the taking of the property. We conclude that there is such a mens rea element in the statute, but disagree with the Appellate Division that the evidence was legally insufficient to establish it. We therefore reverse the order of the Appellate Division and reinstate defendant’s convictions for robbery and a related count.

I.

Shortly after midnight on September 10, 1983, a young woman and two of her friends were socializing at Unger’s Bar in Buffalo. The woman left for an adjacent restaurant, where she ordered two hot dogs and, not wanting to eat alone in the restaurant, sat in the passenger seat of her friend’s car, parked nearby.

Defendant suddenly entered the car from the driver’s side, brandishing a knife which he held to her neck, and repeatedly threatened that she would "pay” for what her girlfriend did. When she asked for an explanation, defendant pushed her down, blindfolded her, and drove for about 10 or 15 minutes. He then parked on a dark street and ordered her out of the car, whereupon he raped and sodomized her.

After the assault, defendant stood over his victim and threatened to kill her because she could identify him. She pleaded for her life and suggested that defendant instead take her purse. Defendant returned to the car, emptied the contents of the purse, and fled with her money.

Defendant was convicted, after a jury trial, of rape, sodomy, robbery and unauthorized use of a motor vehicle, each in the first degree. On appeal to the Appellate Division, defendant argued that the evidence was legally insufficient to sustain the conviction for robbery. Agreeing, the Appellate Division held that defendant "did not threaten the use of force for the purpose of compelling the owner to deliver up the property or for the purpose of preventing or overcoming resistance to the taking or retention of the property.” (166 AD2d 879, 880.) The court reversed the convictions for robbery and for unauthorized use, which was predicated on robbery (see, Penal Law § 165.08) and dismissed those counts of the indictment.

We disagree with the Appellate Division’s analysis of the evidence and conclude that the proof was legally sufficient to sustain the jury’s verdict on robbery.

II.

The threshold issue in this case is one of statutory interpretation, as to which the Court’s role is clear: our purpose is not to pass on the wisdom of a statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment. We discharge that role first by looking to the language of the statute in question, which in the present case is unambiguous. Robbery is defined in Penal Law § 160.00 as follows:

"Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
”1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
”2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” (Emphasis added.)

Stated simply, the issue is whether the "for the purpose of’ language sets forth a mens rea element of robbery. In other words, must a defendant intend that the use of force will either compel a person to deliver up the property, or prevent resistance to the taking of property, or is it sufficient that the force employed has that unintended effect? We conclude that under this statute, a defendant must intend that the threatened or actual use of physical force have one of the enumerated consequences.

We reach this conclusion because, giving the words their ordinary meaning, the statute is difficult to read otherwise. The statute defines robbery as a larceny accompanied by force employed for one of the purposes set forth. Logically, a defendant cannot act with a specified purpose unless an intent is formed to carry out that purpose. Thus, courts in this State have uniformly read the "for the purpose” language as an intent element of the statute (see, People v Chessman, 75 AD2d 187, 193, appeal dismissed 54 NY2d 1016; People v Lopez, 58 AD2d 516; see also, People v Nixon, 156 AD2d 144, appeal dismissed 76 NY2d 870).

In at least one other State with a statute like ours, the courts similarly have read "for the purpose of’ to require intent. The Supreme Court of Connecticut, for example, construing a nearly identical robbery statute, held "the statute requires that the state prove that physical force was used by the defendant with the conscious objective or intention of preventing or overcoming resistance.” (State v Williams, 202 Conn 349, 356, 521 A2d 150, 154.) Delaware’s statute simply substitutes the words "with intent to” for Penal Law § 160.00’s "for the purpose of’. (See also, 2 LaFave and Scott, Substantive Criminal Law § 8.11 [e] [concluding that unless defendant’s acts of violence and intimidation are undertaken for the very purpose of taking the victim’s property, there would be no robbery "under those robbery statutes which expressly state that the force must be used for the purpose of committing the theft” (id., at 453-454, and n 92, citing Penal Law § 160.00)].)

Our reading of the plain language of the statute is confirmed beyond question when its origins are examined. In 1961, the Legislature created a Temporary State Commission whose purpose was to revise and simplify the existing Penal Law, which had last been codified in 1909 (see, L 1961, ch 346). The Commission prepared a complete proposed revision of the Penal Law, introduced as a study bill at the 1964 legislative session. It defined robbery as follows:

"Robbery is forcible stealing. A person forcibly steals property and commits robbery when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he takes such property from the person or in the presence of the owner by:
"1. Using physical force upon the owner with intent thereby to prevent his power of resistance or to overcome his resistance (a) to the taking of the property, or (b) to the actor’s retention of the property immediately after the taking; or
"2. Threatening the imminent use of physical force upon the owner or another person who is present, with intent thereby to compel the owner to acquiesce (a) in the taking of the property, or (b) in the actor’s retention of the property immediately after the taking.” (Emphasis added.)

After soliciting public comment and holding hearings, the Commission determined that the proposed robbery statute was deficient in that it (and then-existing Penal Law §2120) contained a "from the person or in the presence of’ limitation which would exclude a variety of forcible thefts that were "robberies in spirit” (Fourth Interim Report of State of NY Temp Commn on Revision of Penal Law and Criminal Code, at 39 [1965 NY Legis Doc No. 25]), and it excluded those elements from the final draft submitted to the Legislature. But more importantly for present purposes, the Commission also streamlined the definition of robbery, and the initially proposed "with intent thereby” elements became the "for the purpose of’ element in Penal Law § 160.00.

Thus, the plain language of the statute, amply confirmed by an examination of its history, establishes that "for the purpose of’ was intended by the Legislature to be a mens rea element.

III.

We next turn to the question whether the proof was legally sufficient to support the mens rea element discussed above— the only element in dispute. The issue was raised at trial by defendant’s motion to dismiss at the close of the People’s case, which the trial court denied, finding an issue of fact. The motion was properly denied if, viewing the evidence in a light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that the elements of robbery were satisfied (see, People v Contes, 60 NY2d 620, 621).

Often there is no direct evidence of a defendant’s mental state and the jury must infer the mens rea circumstantially from the surrounding facts (see, People v Bracey, 41 NY2d 296, 301). The applicable culpability standard — intent—required evidence that, in using or threatening physical force, defendant’s "conscious objective” was either to compel his victim to deliver up property or to prevent or overcome resistance to the taking (Penal Law § 15.05 [1]; § 160.00 [1], [2]). We conclude that a jury could rationally have found from the circumstances surrounding the larceny that defendant’s continuous application of the threat of force was with the conscious objective of compelling his victim to deliver up her property or preventing or overcoming resistance to the taking or retention of her property.

A jury was not bound to accept defendant’s stated purpose to kill at face value. But even assuming that purpose had to be taken at face value — as the Appellate Division apparently did — a jury could rationally conclude from the circumstances that at some point after the victim "offered” her property in response to defendant’s threat of death, defendant continued the threat of force with the conscious objective of overcoming resistance to the taking or retention of the property. Thus, the evidence of intent was sufficient as a matter of law and the trial court properly denied the motion to dismiss.

Accordingly, the order of the Appellate Division should be reversed and the judgment of Erie County Court reinstated.

Titone, J.

(dissenting). Although the Court concedes that defendant’s conviction for robbery cannot stand unless there was sufficient evidence presented at his trial from which the jury could rationally find that he threatened the complainant with the "conscious objective” of either compelling her to deliver up her property or preventing resistance to his taking or retention of that property, it nevertheless goes on to conclude that the People fully met their burden in this regard. My own review of the record, however, compels me to disagree. The proof adduced below was simply too equivocal to establish that defendant acted with the mental culpability necessary to commit robbery. Indeed, the contrary conclusion reached by the majority, in my view, virtually eviscerates that element of the crime.

Briefly stated, the evidence — when viewed in a light most favorable to the prosecution — indicates that defendant, after raping and sodomizing the complainant, informed her that he planned to kill her because she could identify him. She immediately began to plead for her life, saying: "Take my purse, my money, take whatever, but please don’t kill me.” Defendant then emptied her purse and fled with her money. He was later apprehended, and ultimately convicted of, inter alia, rape, sodomy, and robbery, each in the first degree.

In concluding that defendant’s robbery conviction should have been sustained, the Court reasons that the jury could have rationally inferred from the foregoing that defendant, at some point, threatened the complainant "with the conscious objective of compelling [her] to deliver up her property or preventing or overcoming resistance to the taking or retention of her property” (majority opn, at 315). I simply cannot agree. Although, as the majority notes, the prosecution was certainly free to prove defendant’s state of mind by circumstantial evidence, it nevertheless remained incumbent upon it to adduce sufficient proof — circumstantial or otherwise — from which the jury could find beyond a reasonable doubt that defendant did in fact possess the mental culpability necessary to commit robbery (see, People v Von Werne, 41 NY2d 584, 590). The People’s proof in this regard, however, was highly equivocal (see, People v Chessman, 75 AD2d 187, appeal dismissed 54 NY2d 1016; People v Lopez, 58 AD2d 516), and could, in my view, only have left the jury to speculate impermissibly as to whether defendant acted with the requisite mental state (see, People v Kennedy, 47 NY2d 196, 202). Accordingly, I must respectfully dissent.

Chief Judge Wachtler and Judges Hancock, Jr., and Bellacosa concur with Judge Kaye; Judge Titone dissents and votes to affirm in a separate opinion in which Judges Simons and Alexander concur.

Order reversed, etc.

      . Connecticut’s robbery statute (Conn Gen Stat § 53a-133) provides: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

      . Del Code Annotated, title 11, § 831 provides:
      "A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of force upon another person with intent to:
      "(1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or
      "(2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.”

      . Under the Penal Law of 1909, robbery was defined as follows:
      "§ 2120. Robbery defined. — Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery.
      "§ 2121. Force or fear must be employed. — To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery.”

       Defendant’s rape and sodomy convictions are not at issue on this appeal.


author: Simons, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Lawrence Bolling, Appellant. The People of the State of New York, Respondent, v Marlene Steele, Appellant.
    Argued January 14, 1992;
    decided April 3, 1992
    Decided April 3, 1992

      POINTS OF COUNSEL

      Steven R. Bernhard for appellant in the first above-entitled action. I.
    At trial, appellant made a prima facie showing of purposeful discrimination by the prosecutor’s use of peremptory challenges; appellant’s equal protection rights were violated. (Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420; People v Jenkins, 75 NY2d 550; People v Epps, 163 AD2d 325; People v Kern, 75 NY2d 638; People v Mack, 143 AD2d 280.) II. The expert testimony that the substance was cocaine was improperly admitted. (People v Jones, 73 NY2d 427; People v Miller, 57 AD2d 668; People v Branton, 67 AD2d 664; People v Rodriguez, 94 AD2d 805; People v Flores, 138 AD2d 512, 72 NY2d 859.)

      Robert M. Morgenthau, District Attorney (Christina Welykyj and Mark Dwyer of counsel), for respondent in the first above-entitled action. I.
    The trial court properly concluded that defendant had failed to make a prima facie showing that the prosecutor had used his peremptory challenges to exclude black jurors on racial grounds. (Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638; People v Jenkins, 75 NY2d 550; Teaque v Lane, 489 US 288; United States v Biaggi, 853 F2d 89; People v Hernandez, 75 NY2d 350; People v Hockett, 128 AD2d 393; People v Munoz, 153 AD2d 281; People v Guillory, 168 AD2d 357; People v Blunt, 162 AD2d 86.) II. The trial court properly admitted expert testimony that the substance defendant sold was cocaine. (People v Jones, 73 NY2d 427; People v Sugden, 35 NY2d 453; People v Patterson, 39 NY2d 288, 432 US 197; People v Boas, 92 NY 560; People v Corchado, 166 AD2d 279; People v Branton, 67 AD2d 664; People v Wicks, 122 AD2d 239; People v Hushie, 145 AD2d 506; People v Flores, 138 AD2d 512; People v Miller, 57 AD2d 668.)

      Nancy E. Little for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Donna Krone of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Simons, J.

These appeals, involving application of the rules developed in Batson v Kentucky (476 US 79), raise two questions: (1) whether a prima facie showing of discrimination may be established before completion of the jury selection process and (2) whether defense counsel established a prima facie case that the prosecution had violated the Equal Protection Clauses of the Federal and State Constitutions by exercising peremptory challenges for discriminatory purposes (US Const 14th Amend; NY Const, art I, § 11). In People v Bolling, we hold that defense counsel established a prima facie case and, inasmuch as the prosecutor failed to provide racially neutral reasons for his challenges, the judgment must be modified. In People v Steele, we hold that a prima facie case was not established and consequently affirm the order of the Appellate Division.

In Batson v Kentucky (supra) the prosecutor used peremptory challenges to strike four African-Americans from the jury so that defendant, an African-American, was tried by an all-Caucasian jury. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the use of peremptory challenges solely for discriminatory purposes. Finding that a prima facie case of discrimination had been established, the Court remanded the case to enable the prosecutor to provide racially neutral reasons for the strikes or, in the absence thereof, for a new trial. The Court set forth three steps for establishing prima facie that the prosecutor used peremptory challenges to discriminate in selecting the petit jury. The defendant must show (1) that he or she is a member of a cognizable racial group, (2) that the prosecutor’s use of peremptory challenges resulted in the exclusion of members of defendant’s race from the jury, and (3) facts and other relevant circumstances sufficient to raise an inference that the prosecutor used the challenges for discriminatory purposes (Batson v Kentucky, supra, at 96; People v Jenkins, 75 NY2d 550, 555-556; People v Scott, 70 NY2d 420, 423). Once the defendant makes a prima facie showing of discrimination, the burden shifts to the prosecution to present racially neutral explanations for the challenges. It cannot rebut defendant’s prima facie case, however, by merely alleging its good faith or by claiming that the stricken jurors would be biased because they shared defendant’s race (Batson v Kentucky, supra, at 97-98; People v Scott, supra, at 423). We have held that the discriminatory use of peremptory challenges also violates the Equal Protection Clause of the State Constitution (see, People v Kern, 75 NY2d 638).

In the matters before us, defendants satisfied the first two requirements by showing that they are African-Americans and that the prosecution struck several African-American jurors. To satisfy the third, and raise an inference of discrimination, defendants allege a "pattern” of strikes used by the prosecution against African-Americans during the jury selection process (see, Batson v Kentucky, supra, at 97).

In People v Bolling, defense counsel’s challenge came after counsel had questioned the first 12 prospective jurors. Five African-Americans were examined and all were dismissed, four by the prosecution. In People v Steele, defendant bases her claim on strikes made during selection of the first 21 jurors. At that time, six African-Americans had been examined and the prosecution had removed three by peremptory challenges.

We conclude that a defendant may assert a claim that peremptory challenges are being used for discriminatory purposes when those challenges are exercised, regardless of whether jury selection has been completed. Although Batson addressed the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded, that was only one of the " ‘multiple ends’ ” the decision was designed to serve (see, Allen v Hardy, 478 US 255, 259 [quoting from Brown v Louisiana, 447 US 323, 329]). The Supreme Court recognized, as have we, that a prosecutor’s discriminatory use of peremptory challenges violates the Equal Protection Clause not only because it violates the defendant’s rights but also because it harms excluded jurors and the community-at-large (see, Powers v Ohio, 499 US —, —, 113 L Ed 2d 411, 422 [Caucasian defendants have standing to object to prosecutor’s strikes against African-American jurors]; People v Jenkins, 75 NY2d 550, 557, supra; People v Kern, 75 NY2d 638, 652, supra). The purpose of the Batson rule is to eliminate discrimination, not minimize it and, therefore, it is inconsequential that, after defense counsel voiced their objections, these prosecutors permitted African-Americans to sit on the jury. ‘‘[T]he exclusion of any blacks solely because of their race” is constitutionally forbidden (People v Jenkins, 75 NY2d 550, 559, supra [emphasis in original]). The wrong may occur after only one strike and the prosecution cannot defer the objection and later overcome it with evidence that the jury, as finally selected, contained a proportionate number of African-Americans (see, United States v Johnson, 873 F2d 1137, 1139-1140; United States v Clemons, 843 F2d 741, 747, cert denied 488 US 835; People v Jenkins, 75 NY2d 550, 557, supra). Accordingly, the motions were appropriate when made and we focus on whether defendants established a prima facie case of discrimination in the cases before us. The question is one of law reviewable by this Court (People v Scott, 70 NY2d 420, 425, supra).

People v Bolling

Jury selection began with the court excusing a number of disqualified persons on the venire. The court then filled the jury box with 16 potential jurors. Five of the first 12 were African-American and, after counsel had examined them, challenges were exercised. No jurors were excused for cause. The prosecution struck five jurors peremptorily, four African-Americans and one of Asian ancestry. Defense counsel struck the one remaining African-American and three non-African-Americans. Defense counsel then objected to the prosecution’s use of peremptories to exclude the four African-Americans. The court failed to rule on the objection and jury selection continued until the end of the day. The remaining four potential jurors in the original panel of 16 were then chosen without objection. Two of the four were African-American.

The next day, defense counsel renewed his objection, amplifying his claim of discrimination by asserting that two of the African-Americans the prosecution excluded were "pro-prosecution” because they had ties to law enforcement: one was the girlfriend of a police officer and a crime victim and the other was a security supervisor in charge of preventing crime. The Assistant District Attorney did not deny counsel’s statement but noted two African-Americans had been selected to sit from the four jurors questioned after the objection had been made. Based upon this, the court determined that there had been no attempt to systematically exclude African-Americans. Defense counsel did not renew his Batson objection thereafter and ultimately it appears that five of the selected jurors were African-American, with an additional African-American person sitting as an alternate.

The Appellate Division, First Department, affirmed, noting that the jury as chosen consisted of at least five African-Americans and finding that defendant had failed to establish a prima facie case that the prosecutor exercised peremptory challenges in a purposefully discriminatory manner (People v Bolling, 166 AD2d 203).

People v Steele

The same process was used for jury selection in Steele. Of the first 12 prospective jurors seated, nine were Caucasian and three were African-American. After the prosecution peremptorily challenged two of the three African-Americans, defense counsel objected that the prosecution was discriminating in the exercise of its challenges because defendant was an African-American female and the two prospective jurors stricken by the prosecution were also African-American females. He offered no other evidence that the strikes were exercised for discriminatory purposes. The court found that, inasmuch as they were only talking about two jurors, no pattern had been established but instructed defense counsel that he could renew his application if a pattern developed. The next four prospective jurors included one African-American. The prosecution exercised no peremptory challenges, while defense counsel exercised three against Caucasians. The next three jurors included two African-Americans and the prosecution and defense each excluded one of them. At this point, defense counsel again objected to the prosecution’s exclusion of African-Americans. The court overruled the objection, noting that two of the jurors selected were African-American and stating that it could see no pattern of discrimination. Two Hispanic women were then considered, with each side peremptorily striking one. Defense counsel objected for the third time because the prosecution had used its challenge to exclude another “non-white.” The court merely noted the objection. Thus, at the conclusion of the first day of jury selection, 21 prospective jurors had been examined, six African-Americans and 15 non-African-Americans. The prosecution struck three African-Americans and one non-African-American peremptorily. Jury selection was concluded the next day.

On appeal, the Appellate Division affirmed the judgment, finding defendant had failed to establish a prima facie case of purposeful discrimination. The court emphasized that, although three African-Americans were excluded, three others were not challenged by the prosecution (People v Steele, 171 AD2d 599).

Defendant Steele rests her claim of discrimination on the selection process prior to the third objection, after 21 prospective jurors had been examined. At this point, the prosecution had exercised three of four peremptory challenges to exclude three of six African-Americans.

There are no fixed rules for determining what evidence will give rise to an inference sufficient to establish a prima facie case of discrimination. In Batson the Supreme Court listed, as examples, a pattern of strikes or questions and statements made by the prosecutor during voir dire suggesting discriminatory motives (see, Batson v Kentucky, 476 US 79, 97, supra; see also, People v Jenkins, 75 NY2d 550, 556, supra). The defendant may also raise an inference of discrimination by making a record comparing Caucasians accepted with similarly situated African-Americans challenged, or by establishing objective facts indicating that the prosecutor has challenged members of a particular racial group who might be expected to favor the prosecution because of their backgrounds (see, e.g., United States v Jordan, 893 F2d 182, 184, vacated on other grounds 496 US 902; People v Scott, 70 NY2d 420,425, supra). The mere inclusion of some members of defendant’s ethnic group will not defeat an otherwise meritorious motion (United States v Clemons, 843 F2d 741, 747, supra; People v Jenkins, supra, at 557). Although the racial distribution of those on the jury, as compared to the population generally, is not relevant to establish a prima facie case (see, Holland v Illinois, 493 US 474, 482-483; People v Jenkins, supra, at 558), a disproportionate number of strikes challenging members of a particular racial group within a venire may be sufficient to create an inference establishing a prima facie claim (see, Batson v Kentucky, supra, at 97; People v Jenkins, supra, at 556). Generally, however, percentages will not be conclusive of the issues (see, United States v Jordan, 893 F2d 182, 184, supra; United States v Lewis, 892 F2d 735, 736; but see, United States v Alvarado, 923 F2d 253, 255-256). Finally, when a Batson objection has been made, defendant is entitled to the benefit of the proposition that peremptory challenges permit those inclined to discriminate to do so (see, Batson v Kentucky, supra, at 96; and see generally, 2 LaFave and Israel, Criminal Procedure § 21.3 [1991 Pocket Part]).

Because we have no record of the questions posed during voir dire in these cases, our determination must rest upon the claimed discriminatory pattern of strikes as they relate to the prospective jurors examined and the few facts developed during colloquy.

In Bolling, the prosecution exercised five peremptory challenges, four to exclude African-American members of the venire. African-Americans comprised 42% of the 12 prospective jurors, and 80% of them were excluded by the prosecution. This disproportionate number of challenges to African-American prospective jurors coupled with defendant’s uncontested assertion that two of the four jurors excused by the Assistant District Attorney had proprosecution backgrounds was sufficient to raise an inference that the Assistant District Attorney had used his peremptories to discriminate. Accordingly, the court should have required the prosecutor to give reasons establishing that the strikes were for racially neutral reasons. If he was unable to do so, the court should have sustained the objection, and seated the juror notwithstanding the prosecutor’s challenge (see, People v Kern, 75 NY2d 638, supra). The reasons given for denying the motion, that the prosecution had subsequently accepted two African-American jurors, was legally irrelevant.

Defendant Steele also relies on a pattern of strikes. In her case, the prosecution struck three of the six African-Americans available. While the prosecutor exercised three of her four challenges against African-Americans, that alone is not sufficient to establish a pattern of exclusion of African-Americans. In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination.

We have considered the remaining issues raised by defendants and find none is a ground for reversal.

Accordingly, in People v Bolling the order of the Appellate Division should be modified by remitting to Supreme Court, New York County, for a hearing to afford the People an opportunity to provide racially neutral reasons for the exercise of their peremptory strikes. In the absence of such explanation, the judgment of conviction should be vacated and a new trial ordered. Should satisfactory explanation be provided by the People, the judgment of conviction should be amended to show that result (see, Batson v Kentucky, 476 US 79, 100, supra; People v Jenkins, 75 NY2d 550, 560, supra). In People v Steele the order should be affirmed.

Bellacosa, J.

(concurring). We concur in the result and in Judge Simons’ opinion, but write separately to express a broader concern and perspective.

We agree that ”[t]he purpose of the Batson [Batson v Kentucky, 476 US 79] rule is to eliminate discrimination, not minimize it” (majority opn, at 321). The Court’s conclusions are correct — in this case, Bolling, the prosecutor should have been required to give racially neutral reasons to rebut defendant’s prima facie case of discriminatory peremptory strikes, and in Steele the defendant failed to establish a prima facie case. We agree with these results because People v Jenkins (75 NY2d 550) could not be more explicit in its guidance: "For the purposes of equal protection, the constitutional violation is the exclusion of any blacks solely because of their race. If any blacks are so excluded, it is of no moment that the jury nevertheless contains a token number of blacks” (supra, at 559 [emphasis in original]).

The rationale of Bolling, however, along with the eight-year experience in this State with the effectiveness — or lack of same — of the Batson remedy, and the proliferation and permutation of problems in the appellate pipeline, point inexorably to the need for a broader remedy: the elimination of the peremptory challenge process. If the purpose, quoted above, is to be honored and achieved, then the euphemisms and the rationalizations should be ended. Peremptories have outlived their usefulness and, ironically, appear to be disguising discrimination — not minimizing it, and clearly not eliminating it. The time and circumstances warrant the Legislature addressing these important issues.

The process that requires courts to sift through counsel’s words for patterns or pretexts of discrimination has not served the goal of cutting the discriminatory weeds out of the jury selection process. Indeed, "[a]s much as and perhaps more than the decision in Swain [v Alabama, 380 US 202], Batson brings to the surface and appears to ratify crude and unbecoming ways of classifying human beings” and "to disapprove some invidious discrimination while apparently validating much more” (Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U Chi L Rev 153, 201 [1989]).

Analytically, peremptories and race-neutral articulations present a quintessential and untenable dualism. A peremptory challenge by its nature should not have to be explained. CPL 270.25 opens with this sentence: "A peremptory challenge is an objection to a prospective juror for which no reason need be assigned.” Batson, of course, necessarily changed that. Yet, the Batson approach has proved unworkable and, in the State judicial laboratories, has rather quickly proved wrong the Batson Court’s confidence that Judges "will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination” (476 US 79, 97, supra), and — after asserted rationalizations are proffered — "to determine if the defendant has established purposeful discrimination” by the prosecutor, or vice versa (id., at 98 [emphasis added]).

Perversely, many varieties of discrimination, except the most overt, flagrant manifestations, appear to be surviving the scrutiny of the half-step Batson remedy. Time and experience with many cases have proven the prescience of Justice Marshall’s observations, concurring separately in Batson, that "[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge” because Batson leaves prosecutors "free to discriminate against blacks in jury selection provided that they hold that discrimination to an 'acceptable’ [or nonascertainable] level” (Batson v Kentucky, supra, at 105 [emphasis added]). Recognizing the inherent inadequacy of the remedy adopted in Batson to "eliminate” discrimination, Justice Marshall emphasized that "[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons” (id., at 105-106). More troubling, "[e]ven if sill parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels” (id., at 106). Justice Marshall doubted they could meet that challenge, emphatically concluding that Batson would "not end the racial discrimination that peremptories inject into the jury-selection process” and that this goal will only be realized "by eliminating peremptory challenges entirely” (id., at 102-103). From the experience with our cases we, too, now see how correct Justice Marshall was.

Our Court, of course, has recognized and embraced the Supreme Court’s historic half-step Batson remedy (see, People v Jenkins, 75 NY2d 550, supra; People v Kern, 75 NY2d 638; People v Hernandez, 75 NY2d 350, affd 500 US —, 111 S Ct 1859). In Kern, we evenhandedly condemned discriminatorily motivated peremptory strikes by defense lawyers. We have recognized that discrimination in the jury selection process "undermines public confidence in the fairness of our system of justice * * * and is repugnant to the just operation of a free society” (People v Jenkins, supra, at 558). Indeed, jury service —a "privilege [and duty] of citizenship” — is a civil right established by our State Constitution (NY Const, art I, §§ 1, 11; Civil Rights Law § 13) and a means of participating in government (People v Kern, supra, at 651-652).

The untenable duality of "arbitrary and capricious” peremptories (4 Blackstone, Commentaries, at 353; see, Batson v Kentucky, 476 US 79, 102, supra [Marshall, J., concurring]) and the constitutionally required assertion of "adequate” neutral reasons, combined with the ease with which purportedly neutral reasons can be articulated, recently evoked a call that the Legislature reexamine the existing peremptory system (see, People v Hernandez, 75 NY2d 350, 359, supra [Titone, J., concurring]; see also, 1990 Report of Advisory Comm on Grim Law and Procedure, reprinted in 1990 McKinney’s Session Laws of NY, at 2856-2857; 1976-1977 Interim Report of Subcommittee on Jury System). The Legislature’s attention has been summoned to many bias-related crime victim bills that are being debated this Session (see, e.g., S3576 and A5921; S3695 and A6235; S3696 and A6234), and for that reason also, we believe the call to attention and action with respect to the peremptory challenges problems becomes all the more urgent at this time.

The United States Supreme Court’s effort at a "middle ground” remedy in Batson, which establishes the goal of eliminating discriminatory jury selection while simultaneously preserving the common-law peremptory process, appears therefore to be disserving both interests (Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J Crim L & Criminology 1, 2, 62 [1988]; see, Note, Batson v. Kentucky: A Half Step in the Right Direction, 72 Cornell L Rev 1026, 1038, 1046 [1987]). Considerable secondary, scholarly authorities since the Batson decision have focused on the inadequacy of its remedy and the need to eliminate or substantially alter the existing peremptory challenge system. Commentators have catalogued the veritable mine field of litigation generated by Batson, demonstrating that the effort to have it both ways has resulted in an "enforcement nightmare” (Pizzi, Batson v. Kentucky: Curing the Disease but Killing the Patient, 1987 Sup Ct Rev 97, 134).

The proliferation of Raison-generated trial court colloquies, counterproductive diversions and appellate cases have confirmed William Pizzi’s observation: "If one wanted to understand how the American trial system for criminal cases came to be the most expensive and time-consuming in the world, it would be difficult to find a better starting point than Batson” (Pizzi, Batson v. Kentucky: Curing the Disease but Killing the Patient, 1987 Sup Ct Rev 97, 155; see, Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U Chi L Rev 153, 170-201 [1989]).

Moreover, the further procedural fragmentation of the already unduly lengthened jury selection process (see, People v Boulware, 29 NY2d 135, cert denied 405 US 995; CPL 270.25), by arithmetic and percentile calculations and intermittent persistent interruptions reflected in the remittal order in Bolling for a hearing (see, majority opn, at 325), is counterproductive and unwise. Further, in a relatively short time span, our Court and the Appellate Division have been grappling with Batson case after Batson case, raising a seemingly endless variety of issues and permutations, manifesting the intractable struggle of the lower courts to implement the unmanageable and self-contradictory Batson remedy (see, e.g., People v Simmons, 171 AD2d 1053, affd 79 NY2d 1013; People v Brooks, 176 AD2d 812, lv granted 79 NY2d 853; People v Hernandez, 176 AD2d 481, lv granted 79 NY2d 858; People v Hawthorne, 175 AD2d 880, lv granted 79 NY2d 858; People v McArthur, 178 AD2d 612, lv denied 79 NY2d 950; People v Childress, 177 AD2d 498, lv denied 79 NY2d 945). It has become virtually impossible for appellate courts or trial courts to discern proper gradations and variations and to provide meaningful procedural guidance guaranteeing some measure of consistent application. The Bolling case dramatically demonstrates the practical and intractable nature of these procedural diversions and digressions.

Indeed, considerable commentary analyzing the inadequacies of the Batson remedy has similarly concluded that the existing peremptory challenge system needs reexamination with a view toward purging the jury process of this device which preserves and hides considerable invidious discrimination (see, McMillian and Petrini, Batson v. Kentucky: A Promise Unfulfilled, 58 U Mo KC L Rev 361, 374 [1990]; Gurney, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv CR-CL L Rev 227, 244, 283 [1986]; Massaro, Peremptories or Peers? — Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 NC L Rev 501, 560-561 [1986]; Brown, McGuire and Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng L Rev 192, 233-234 [1978]; see also, Note, Redefining the Harm of Peremptory Challenges, 32 Wm & Mary L Rev 1027, 1029 [1991]; Note, The Elimination of Racism from Jury Selection: Challenging the Peremptory Challenge, 32 BC L Rev 433, 485 [1991]; Note, Due Process Limits on Prosecutorial Peremptory Challenges, 102 Harv L Rev 1013, 1014, 1032 [1989]; Note, Moving Closer to Eliminating Discrimination in Jury Selection: A Challenge to the Peremptory, 7 [Part 1] NY L Sch J Hum Rts 204, 234, 239-242 [1989]; Comment, Jury Discrimination: The Peremptory Challenge as a Racially Discriminatory Device, 12 S U L Rev 189 [1986]; Comment, Curbing Prosecutorial Abuse of Peremptory Challenges — The Available Alternatives, 3 W New Eng L Rev 223, 245-246 [1980]). Unfortunately, the Batson procedural hurdles have become "less obstacles to racial discrimination than they are road maps” to disguised discrimination (Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J Crim Law & Criminology 1, 59 [1988]).

The United States Supreme Court’s continuing efforts to combat the corrosive problem of jury selection bias are instructive and demonstrate the dynamic nature of the remedial situation. Swain v Alabama (380 US 202, supra) tolerated discriminatorily motivated peremptory challenges (see also, CPL 270.25). In 1983, despite its denial of certiorari in McCray v New York (461 US 961), the United States Supreme Court exhibited its disquietude with the status quo by extraordinary dissenting and concurring expressions in that case predicting —almost promising — imminent change. The change came in 1985 in Batson — the partial fulfillment of that promise (476 US 79, supra). Since then, in a series of rulings, the United States Supreme Court has continued to struggle with the Batson half-step remedy and has continued to push the stone up the mountain, paving the way towards eventual elimination of the peremptory process. The United States Supreme Court’s recent expressions, relegating responsibility for implementation of this unworkable remedy to the trial courts, evince the impracticality and woeful unevenness of its application (see, e.g., Powers v Ohio, 499 US —, —, 111 S Ct 1364, 1374 ["It remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice”]; Edmonson v Leesville Concrete Co., 500 US —, —, 111 S Ct 2077, 2089 ["The same approach applies in the civil context, and we leave it to the trial courts in the first instance to develop evidentiary rules for implementing our decision”]; see also, Ford v Georgia, 498 US —, 111 S Ct 850). This inverted rule-making delegation merely postpones the day of reckoning.

We are persuaded to urge this fundamental reexamination of the peremptory challenge system because, even under Batson, we find peremptories to be "probably the single most significant means by which such prejudice and bias [are] injected into the jury selection system” (Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 Loy LA L Rev 247, 270 [1973]), which creates a great paradox and semantical subterfuge. To be sure, the peremptory system evolved to ensure a fair trial and impartial jury. But when such challenges "are perverted and transformed into tools of bias and racism, the reasons for peremptory challenges no longer exist, and they should be eliminated” (McMillian and Petrini, Batson v. Kentucky: A Promise Unfulfilled, 58 U Mo KC L Rev 361, 374 [1990]).

When a peremptory strike is no longer peremptory, by definition, because an explanation is required by Batson, and when a remedy is not a remedy because the remedy ironically defeats or suppresses the stated purpose, then strong measures — stronger measures than Batson — are needed (see and compare, Shelley v Kraemer, 334 US 1, and Brown v Board of Educ., 349 US 294). It is time for the Legislature to come to terms with the undisputed fact that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate’ ” (Batson v Kentucky, supra, at 96, quoting Avery v Georgia, 345 US 559, 562), and that the Batson effort has failed to fulfill its stated goal of eradicating invidious discrimination from the jury selection process.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Bellacosa concurs in a separate opinion in which Chief Judge Wachtler and Judge Titone also concur.

In People v Bolling: Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

In People v Steele: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.

       This is not to say that if the strikes were proportionate to the number of African-Americans on the venire that there could be no pattern of strikes. Disproportionality is only one indicia of the discriminatory use of peremptory challenges.