¶1The majority has narrowly defined the issue presented herein. It is not whether defendant’s rights under the due process or equal protection clauses of the Fourteenth Amendment to the United States’ Constitution have been violated. It is not whether his right to a fair trial under the Sixth Amendment to the United States Constitution has been violated. The only question confronting the court is whether there has been a violation of defendant’s State constitutional right to a trial by an impartial jury.
¶2The majority holds that this State constitutional right was infringed. It finds that the trial court erred in not inquiring into allegations that the prosecutor acted out of racial prejudice in excluding, by peremptory challenge, members of defendant’s race from service on the petit jury.
¶3In reaching this conclusion, the majority acknowledges the United States Supreme Court’s opinion in Swain v Alabama (380 US 202) as a landmark decision in this area of the law. Nevertheless, it recognizes no precedential or persuasive value in Swain, which analyzed a criminal defendant’s, right to an impartial jury in terms of Federal constitutional guarantees of equal protection. Instead, the majority decides to resolve this State constitutional question by analogizing to, and extending, the principles announced by the United States Supreme Court in Taylor v Louisiana (419 US 522). Taylordealt with a criminal defendant’s right to an impartial jury under the Sixth Amendment to the United States Constitution.
¶4In adopting and applying the Taylorholding to the case at bar, the majority also decides to follow the opinions of the Supreme Court of California in People v Wheeler (22 Cal 3d 258) and the Supreme Judicial Court of Massachu*113setts in Commonwealth v Soares ( — Mass —, 387 NE2d 499). Both of these cases were decided on State constitutional grounds.
¶5The majority here, and in People v Wheeler (supra) and Commonwealth v Soares (supra),understands the constitutional right to an impartial jury to be coextensive with a defendant’s opportunity to have a jury chosen from a fair cross section of the community. The majority is cognizant that the vagaries of the random draw and the necessity of permitting challenges for cause will often prevent a jury’s composition from reflecting such a fair cross section of the community. Nevertheless, it holds that if the State, by use of the peremptory challenge and for reasons of racial prejudice alone, prevents members of a particular racial group from serving on a petit jury, that jury’s impartiality is per se violated. Thus, each petit jury, to be impartial, must reflect a fair cross section of the community, as represented in the venire, unless the random draw and challenges for cause make that impossible.
¶6This conclusion is drawn by specifically adopting the principles of Taylor v Louisiana (supra)and applying them to the case at bar. Taylor’s rationale is therefore extended to cover the selection of petit jurors, as well as veniremen. This is done, notwithstanding the express language in Taylorrepudiating such an extension (p 538): “It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition … but the jury wheels, pools of names, panels, or venires, from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” According to Taylor, then, a petit jury’s impartiality, though never defined, is not equated with a fair cross section of the community. Impartiality is a concept separate and distinct, and, when applied to a petit jury, is determined independently from the jury’s racial, ethnic, religious or national makeup. It is achieved when litigants are assured that “the jurors before *114whom they [will] try [their] case will decide on the basis of the evidence placed before them, and not otherwise” (Swain v Alabama, 380 US 202,219, supra).
¶7I cannot, therefore, adhere to the majority’s view of the impartiality of petit juries, nor to its extension of the Tay- / lor rule. And yet, I concur in its concern over allegations that persons are being excluded by the State from service on petit juries simply out of racial bias. This certainly violates the equal protection rights of those prospective jurors, and, in some indefinable way, reduces the appearance of justice, in our criminal justice system. Such a practice should not be countenanced. I am not convinced, however, that in this forum lies the remedy.
¶8By today’s decision, the majority, in effect, rewrites CPL 270.25. Without expressly construing or interpreting the statute, it changes the definition of a peremptory challenge, which is written in plain language. No longer is a peremptory challenge “an objection to a prospective juror for which no reason need be assigned” (CPL 270.25, subd 1). Instead, it is an objection for which no reason need be assigned, unless there is a substantial likelihood of sustaining an allegation that the prosecutor has used his peremptory challenges solely on the basis of race. Moreover, this allegation must be made against the State, thus circumscribing the definition of the peremptory challenge as it applies to the State alone.
¶9The State’s exercise of the otherwise limitless right of the peremptory challenge is limited so as to change the very essence and nature of this right. Nonetheless, the majority does not admit to this change, which, in reality, invalidates the statute as written. It contends, however, that the statute is only invalidated when it is applied unconstitutionally. But this is not true. The statute will be invalidated whenever there is a substantial likelihood that unconstitutional misconduct has occurred, whether ultimately proven or not. Consequently, the State, in order to exercise its statutory right to an unfettered use of the peremptory challenge will have to forego that right whenever it is accused of misusing it as a tool of racial discrimination, and whenever such an accusation impresses the trial court as having a substantial *115likelihood of being true. Thus, by an indefinite standard, depending too heavily on the perceptions of individual Trial Judges, inquiry will be authorized into the State’s use of peremptory challenges, logically requiring a sufficient response in order to defeat any allegation of misconduct. Such a test is vague and uncertain “and severely limits the scope of peremptory challenges. If peremptory strikes can only be exercised in a certain way, dependent on circumstances, and subject to judicial scrutiny, they will no longer be peremptory … [A]n alteration of the very nature of the peremptory system [will occur.]” (State v Grady, 93 Wis 2d 1, 13; see People v Fleming, 91 Ill App 3d 99, 105; Ann. Use of Peremptory Challenge, 79 ALR3d 14, 27-42.)
¶10The majority has thus confronted an admittedly difficult problem and attempted to resolve it by well-meaning judicial legislation. I find this to be a precarious step, fraught with dangerous consequences for the efficient administration of criminal justice. If this step is to be taken, it is the Legislature’s to take since that branch of government has the means of making balanced adjustments to the law as a whole (see Bright Homes v Wright, 8 NY2d 157, 162; Austin v Board of Higher Educ. of City of N. Y., 5 NY2d 430, 444).
¶11Accordingly, I dissent and vote to affirm.
¶12Hopkins, J. P., and Gibbons, J., concur with Margett, J.; Mangano, J., dissents and votes to affirm the judgment, in a separate opinion, with which Titone, J., concurs.
¶13Judgment of the Supreme Court, Kings County, rendered May 26, 1978, reversed, on the law, and new trial ordered.