| People v Guardino |
| 2009 NY Slip Op 03995 [62 AD3d 544] |
| May 21, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Guardino, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered February 6,2007, as amended February 7, 2007, convicting defendant, after a jury trial, of enterprisecorruption, combination in restraint of trade and competition in violation of General BusinessLaw §§ 340 and 341, bribe receiving by a labor official (13 counts), grand larcenyin the third degree (six counts) and grand larceny in the fourth degree, and sentencing him to anaggregate term of 6 to 18 years, affirmed.
Defendant and eight codefendants, including Local Union No. 8 of the United Union ofRoofers, Waterproofers & Allied Workers (Local 8), were charged in a 54 count indictment with,inter alia, enterprise corruption, combination in restraint of trade, bribe receiving by a laborofficial, grand larceny in the third degree, and grand larceny in the fourth degree. Defendant wasthe business manager or chief executive of Local 8, and four other codefendants were also laborofficials. Two of the codefendants are allegedly members of the Genovese organized crimefamily.
The enterprise corruption count alleged that, from September 2001 to the date of theindictment, defendants and others, including members of the Genovese crime family, were partof a criminal enterprise referred to as the "Local 8 Group." This group allegedly accepted bribesand extortion payments from roofing contractors in exchange for "labor peace and lenienttreatment by union officials who failed to enforce the union collective bargaining agreements onunion projects." The alleged pattern of criminal activity included 113 acts of possession of stolenproperty, money laundering, falsifying business records, labor bribery, extortion, andcombination in restraint of trade in violation of the Donnelly Act.
Local 8 and four other defendants entered guilty pleas prior to trial. The remainingdefendants, including appellant, proceeded to trial on October 16, 2006. The jury commenceddeliberations on December 12, 2006 and reached a verdict on December 18. The jury convicteddefendant of enterprise corruption and 21 other felony counts.
Defendant's application pursuant to Batson v Kentucky (476 US 79 [1986]) wasproperly denied. Defendant's argument before the trial court was limited to a numericalargument, i.e., [*2]that four of the six black female prospectivejurors had been stricken by the prosecutor.[FN*]The dissent contends this numerical showing was sufficient to meet defendant's initial burden ofdemonstrating that these potential jurors may have been challenged for impermissible reasons. Areview of the record, however, does not support this conclusion.
Of the six black women in question, four were peremptorily challenged by the People, onewas stricken by the defense and one was seated. While a purely numerical argument may giverise to a prima facie showing of discrimination (see e.g. People v Rosado, 45 AD3d 508 [2007] [where theprosecutor exercised a peremptory challenge against all four Hispanic panelists remaining in thevenire]), numbers alone may not automatically establish such a showing. Even though a primafacie showing of discrimination "may be made based on the peremptory challenge of a singlejuror that gives rise to an inference of discrimination" (People v Smocum, 99 NY2d 418,422 [2003]), if a numerical argument, in and of itself, fails to raise an inference of discriminationthe party raising a Batson claim must present "other facts or circumstances suggestingintentional discrimination" (People vHarris, 55 AD3d 503, 504 [2008], lv denied 11 NY3d 925 [2009]) in order tomeet the first requirement of the three-prong Batson analysis.
Here, defendant presented no other factors which would give rise to a suggestion that thosejurors were peremptorily challenged for impermissible reasons. His numerical argument "wasnot so compelling as to warrant a finding of a prima facie case" (People v Solares, 309AD2d at 503) and was "unsupported by factual assertions or comparisons that would serve as abasis for a prima facie case of impermissible discrimination" (People v Brown, 97 NY2d500, 508 [2002]).
The court properly exercised its discretion in denying defendant's requests for a mistrialduring the fourth and final day of jury deliberations, following a six-week trial involvingcomplex evidence and charges (see People v Baptiste, 72 NY2d 356, 360 [1988];Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984]). The court properlyresponded to a series of jury notes, which variously reported a deadlock and asked for additionalinstructions, by first giving a modified Allen charge encouraging a verdict, then a fullAllen charge, and finally asking the jury to report whether or not, in light of additionalinstructions concerning applicable law, it wanted to continue deliberating or not. The courtcautioned the jurors not to surrender their conscientiously held beliefs, and there was nothingcoercive in any of its instructions (see People v Ford, 78 NY2d 878, 880 [1991];People v Pagan, 45 NY2d 725 [1978]).
Even though, according to the jury's notes, one juror was unwilling to apply the law to thefacts, there was no basis for finding the juror grossly unqualified (see CPL 270.35 [1])simply on the basis of the notes, without making an inquiry. However, defendant never requestedany inquiry, but merely reiterated his request for a mistrial. In any event, the apparent problemwas resolved after further instructions concerning the law were given to the jury.
A court officer's advice to the jury that a requested item was not available for review becauseit was not in evidence constituted a ministerial function, and defendant's presence was [*3]therefore not required (see People v Bonaparte, 78 NY2d26 [1991]).
The "criminal enterprise" element of the enterprise corruption charge (Penal Law §460.10 [3]) was supported by ample evidence of labor racketeering committed for a period ofover a year by union officials including defendant (see People v Cantarella, 160 Misc 2d8, 14 [Sup Ct, NY County 1993]). Although the enterprise ended upon the arrests of itsmembers, the continuity requirement was satisfied by evidence that defendant committedpredicate criminal acts while "operating as part of a long-term association that exist[ed] forcriminal purposes," and had no obvious preplanned termination date (H. J. Inc. vNorthwestern Bell Telephone Co., 492 US 229, 243 [1989]; see also United States vCoiro, 922 F2d 1008 [2d Cir 1991], cert denied 501 US 1217 [1991]). Theenterprise, if undetected by law enforcement, could have continued indefinitely.
We have considered defendant's remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Tom, Buckley and Sweeny, JJ.
Catterson, J., dissents in a memorandum as follows: Because I believe that the defendantmade a prima facie showing of discrimination pursuant to Batson v Kentucky (476 US79 [1986]), I respectfully dissent.
On July 15, 2004, a grand jury issued a 54-count indictment against the defendant and eightcodefendants. Allegedly, from September 2001 to the date of the indictment, the defendants andothers, including members of the Genovese organized crime family, were part of a criminalenterprise, referred to as the "Local 8 Group." The alleged purpose of the Local 8 Group was tomake money by accepting bribes and extortion payments from roofing contractors, in exchangefor "labor peace and lenient treatment by union officials who failed to enforce the unioncollective bargaining agreements on union projects."
Jury selection began with a preliminary screening process. The court read the indictment andexplained the nature of the case. Potential jurors completed lengthy questionnaires. Individualswho believed they could not be fair or could not serve due to the nature of the case wereeliminated. The court then ruled on motions to dismiss jurors for cause.
Out of the remaining pool, a panel of 26 individuals were chosen at random for oralquestioning. Peremptory challenges were exercised resulting in elimination of 18 jurors andselection of eight jurors.
A second panel of 26 potential jurors was then questioned. After one potential juror wasexcused for cause by the court, and 11 additional jurors had come up for possible peremptorychallenges, the defendant made a Batson challenge to the People's use of a peremptorychallenge to strike a black female juror. Defense counsel stated, "they bounced every AfricanAmerican female" or "ethnic female," keeping only one black female, who was actually fromSurinam in South America.
The court reviewed the peremptory challenges, finding that the People had exercised a totalof 11 perempts, 10 against women, with four being against black women. In response to thedefendant's further charge that the People's exercise of perempts had resulted in a virtually allwhite jury, the court noted that defense counsel had challenged two Hispanic women, an Asianmale and a black woman. The record reflects that, of the 11 jurors selected at that point, fivewere [*4]women.
The record further shows that a total of six black females had been on the panels, of whichfour were peremptorily challenged by the People, one was peremptorily challenged by thedefense, and one was empaneled. The court, after ascertaining that the Batson challengewas based on a "female black" class, observed that the "case law on the subject is interesting,"and ruled that the defense had not presented sufficient facts to make out a pattern of thepurposeful use of peremptory challenges against a "recognizable group."
On appeal, the defendant claims that, among other things, the People systematicallyexcluded potential jurors based solely on the fact that they were African American females andthat the trial court violated his right to equal protection by failing to request that the Peopleprovide a race-neutral reason for their challenges.[FN*]
The People argue that the trial court correctly denied the Batson motion because thedefense failed to meet the threshold requirement of a prima facie showing of discriminatorychallenges. Moreover, the People assert that the defendant's claims are unreliable because theyare purely statistical and are based on an intersectional status (race and gender).
For the reasons set forth below, I believe that the defendant made out a prima facie case ofracial discrimination which required the prosecutor to give racially-neutral reasons forperemptorily excluding four out of the six black female panelists.
The Criminal Procedure Law provides a method (CPL 270.20) for both the prosecution anddefense counsel to challenge for cause the selection of a potential juror if it can be shown thatbias may prevent that juror from deciding the case impartially. Additionally, each party mayexercise a limited number of peremptory challenges whereby potential jurors are excusedwithout the party having to state a reason. (CPL 270.25; People v Hernandez, 75 NY2d350, 355 [1990], affd 500 US 352 [1991].)
In Batson v Kentucky, the United States Supreme Court held that the equalprotection clause prohibits a prosecutor from exercising peremptory challenges to strikeprospective jurors on the basis of race. (476 US at 89.) The Supreme Court has extended theBatson rationale to gender. (J. E. B. v Alabama ex rel. T. B., 511 US 127,130-131 [1994].) In New York, the Court of Appeals has broadly stated "[e]limination of apotential juror because of generalizations based on race, gender or other status that implicatesequal protection concerns is an abuse of peremptory strikes." (People v Allen, 86 NY2d101, 108 [1995].)
In any case involving a Batson challenge, the court must follow a three-step processin determining whether peremptory challenges have been exercised in a discriminatory manner.(See [*5]People v Allen, 86 NY2d at 104.) First, thedefendant "must allege sufficient facts to raise an inference that the prosecution has exercisedperemptory challenges for discriminatory purposes." (Id.) If defendant makes a primafacie showing, the "burden shifts to the prosecution to articulate a neutral explanation for strikingthe jurors in question," and, finally, the trial court must determine whether the proffered reasonsare pretextual. (Id.)
There are no "fixed rules" for determining whether a prima facie case has been established.(People v Bolling, 79 NY2d 317, 323-324 [1992].) The court may consider whether therehas been a "pattern of strikes or questions and statements," whether "members of the cognizablegroup were excluded while others with the same relevant characteristics were not," and whetherstricken members of the cognizable group possess background and experience which mightotherwise be expected to favorably dispose them to the prosecution. (People v Childress,81 NY2d 263, 267 [1993].)
As an initial matter, it is necessary to address whether a group of black females is a"cognizable racial group," for the purposes of a Batson challenge. In my view, the spiritof Batson and its progeny requires this Court to recognize peremptory challengesexercised against individuals because of both their race and their sex.
The test courts apply to determine whether a class may be cognizable under Batsonis the test applied in Castaneda v Partida (430 US 482 [1977]). Such a group is "one thatis a recognizable, distinct class, singled out for different treatment under the laws, as written oras applied." (Castaneda, 430 US at 494.)
In J. E. B. v Alabama, the Supreme Court recognized that discriminatory lawshistorically targeted women and racial and ethnic minorities. The Court stated: " '[T]hroughoutmuch of the 19th century the position of women in our society was, in many respects,comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor womencould hold office, serve on juries, or bring suit in their own names, and married womentraditionally were denied the legal capacity to hold or convey property or to serve as legalguardians of their own children . . . And although blacks were guaranteed the rightto vote in 1870, women were denied even that right—which is itself "preservative of otherbasic civil and political rights"—until adoption of the Nineteenth Amendment half acentury later.' " (J. E. B., 511 US at 136, quoting Frontiero v Richardson, 411 US677, 685 [1973].)
These discriminatory laws undeniably have created social crosscurrents as old as the lawsthemselves. Consequently, I believe that the intersectional status at issue here should be treatedthe same way race and gender are treated under equal protection analysis. (See People vGarcia, 217 AD2d 119, 120-122 [2d Dept 1995] [holding that black females are protectedfrom being peremptorily challenged on a discriminatory basis under Batson]; see also People v Jerome, 34 AD3d835 [2d Dept 2006] [recognizing hybrid class of black males].)
I agree with the defendant that a "pattern of strikes" against black females was establishedprima facie. It is well-settled that numerical evidence of discrimination is sufficient to raise aprima facie case under Batson. (See People v Hawthorne, 80 NY2d 873, 874[1992] [where the prosecutor peremptorily challenged four of the [*6]six African American members of the venire and the courtdetermined that the defendant made a prima facie showing that the prosecution exercised itsperemptory challenges in a racially discriminatory manner]; People v Jenkins, 75 NY2d550, 556 [1990] [prima facie "pattern of strikes" established where the prosecutor used only 10peremptory challenges, seven of which were used to strike seven of the 10 blacks on the venire];People v Harris, 283 AD2d 520 [2001] [the People "established a prima facie case ofdiscrimination" when the "defense counsel peremptorily challenged four of the five remainingwhite venirepersons in the second round of jury selection"]; People v Vega, 198 AD2d56 [1st Dept 1993], lv denied 82 NY2d 932 [1994] [where the People "established aprima facie case of purposeful racial discrimination in the use of peremptory challenges whenthey established that the defense used 7 of its 8 challenges to exclude all but one of the whitepersons on the panel of 16"]; see alsoPeople v Rosado, 45 AD3d 508 [1st Dept 2007] [stating that defendant's numericalargument was sufficient to raise an inference of discrimination even though it was notaccompanied by any other evidence].)
In any event, a prima facie showing of discrimination " 'may be made based on theperemptory challenge of a single juror that gives rise to an inference of discrimination' " (People v McCloud, 50 AD3d 379,381 [2008], quoting People v Smocum, 99 NY2d 418, 422 [2003]), and thediscriminatory exclusion of even a single juror is objectionable. (See J. E. B. v Alabama,511 US at 142.)
Here, the defense counsel raised a Batson challenge during the second round of juryselection. At that point, the prosecutor had made a total of 11 challenges, 10 of which were madeagainst females and four of which were made against black females. In other words, four of thesix black females that were on the panels were challenged by the prosecution. I believe that thesenumbers alone are sufficient to raise a prima facie case of jury discrimination requiring someexplanation from the prosecutor.
Accordingly, I believe that the appeal should be held in abeyance and the matter should beremitted to the trial court for the prosecution to provide race neutral reasons for their challenges,and if the prosecution cannot do so, the judgment of conviction should be vacated.
Footnote *: Although defendant makesadditional arguments concerning age and other background characteristics similar to the blackwomen peremptorily excused by the People, these arguments were not preserved and we declineto review them (see People v James, 99 NY2d 264, 270 [2002]; People vSolares, 309 AD2d 502, 503 [2003], lv denied 1 NY3d 581 [2003]).
Footnote *: On appeal, the defendant arguesthat the Batson challenge was based on a class of African American females, not blackfemales, so that one potential juror, the South American woman, who was seated on the jury,could be excluded from the statistical analysis of the prosecution's use of peremptories. In otherwords, the defendant asserts that the ratio between challenged jurors and accepted jurors is fourto one—not four to two. However, the defendant failed to preserve this argument forappeal. As such, I would decline to review the claim.