The Baker Law Firm for Criminal Appeals, PLLC, Bronx (Mark M. Baker of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about September 2, 2020, which denied defendant's CPL 440.10 motion to vacate a judgment, unanimously held in abeyance, and the matter remanded for a hearing in accordance with this decision.

The People consent to this matter being remanded for a hearing to determine whether ethnic bias tainted the jury's deliberations as alleged by defendant (see Peña-Rodriguez v Colorado, 580 US &mdash, 137 S Ct 855 [2017]; People v Leonti, 262 NY 256 [1933]). Defendant's CPL 440 motion included an affidavit from the jury foreperson, in which he swore that, during deliberations, a juror made ethnic comments concerning defendant and the complainant exhibiting "overt [ethnic] bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict" (Peña-Rodriguez, 580 US at &mdash, 137 S Ct at 869).

At the hearing, the court should determine the veracity of these allegations. Should the court find these allegations to be true, it should determine, as a matter of federal law, whether defendant's Sixth Amendment right to jury trial was denied because "[ethnic] animus was a significant motivating factor in the juror's vote to convict" (Peña-Rodriguez, 580 US at &mdash, 137 S Ct at 869). The court should also determine more broadly, as a matter of New York State law, whether the juror's statements "created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own" (People v Maragh, 94 NY2d 569, 574 [2000] [internal quotation marks and citation omitted]).

We reject defendant's request that the hearing proceed before a different justice. Concur—Renwick, J.P., González, Kennedy, Scarpulla, Rodriguez, JJ.