| People v Thomas |
| 2012 NY Slip Op 01152 [92 AD3d 1084] |
| February 16, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin T.Thomas, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Czajka, J.), rendered March19, 2010 in Ulster County, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the third degree.
As the result of his sale of crack cocaine to a confidential informant, defendant was indictedon one count each of criminal possession of a controlled substance in the third degree andcriminal sale of a controlled substance in the third degree. Prior to the start of trial, defendantunsuccessfully moved to suppress the evidence of the packet of crack cocaine he sold to theinformant on the basis of a break in the chain of custody. During jury selection, defendantobjected to the People's challenge to a potential juror on the second voir dire panel, claiming thereason for the challenge was the juror's race. Supreme Court conducted a Batson hearingwith respect to that juror, after which it rejected defendant's objection. Following the ensuing jurytrial, defendant was convicted of criminal sale of a controlled substance in the third degree. Heunsuccessfully moved to set aside the verdict and was thereafter sentenced as a prior felonyoffender to 12 years in prison, with three years of postrelease supervision. Defendant nowappeals.
Initially, defendant contends that Supreme Court should have required the People to [*2]provide race-neutral reasons for the challenges to two potentialjurors from the first voir dire panel who were peremptorily challenged by the People. The recordreflects that, after the People exercised a peremptory challenge to a female African-Americanpotential juror on the second panel, defense counsel made a Batson challenge, explainingthat "[t]here were two black females on the first panel to which the prosecution exercisedperemptories." The court asked the People to respond to the challenge. The People offered intoevidence the questionnaire of the potential juror on the second panel, and explained that she hadbeen excluded because she had indicated on the questionnaire that certain members of her familyhad been either victims or perpetrators of crimes. In response, defense counsel argued that thejuror had also indicated on the questionnaire that she would not have a problem being fair andimpartial. He then continued, stating, "[N]either did the other two ladies that were previously thesubject of peremptories. They all indicated in their answers that they would be fair and impartialjurors . . . They didn't indicate any type of bias whatsoever. My argument is that thePeople have been excluding those on the panel that are of the same race as the [d]efendant."There was then some discussion regarding the identities of the two female potential jurors fromthe first panel and the court allowed both the People and defense counsel an opportunity toretrieve their papers so that the women could be identified, cautioning that it was "not saying that[it] will require a reason" for the exclusion of those two women.
After the two women were identified, Supreme Court asked if the People wanted to be heard.The People then stated simply that "neither witness [sic] was dismissed, either due togender, nor toward [sic] race." The court then accepted the two women's questionnairesinto evidence and stated, "Let's take one at a time. Make your arguments. There was no challengefor [the two women from the first panel], nor perhaps should there have been, but moreimportantly, the [d]efendant did not make a record at the time that the respective jurors [werechallenged] . . . So now it's a question of reinventing the wheel; but the [d]efendant,having established that two African American females were peremptorily charged [sic], Ido require of the [d]efendant - the People, to provide a race neutral answer, or reason, for theperemptory challenge with respect to [the woman from the second panel]. The People havingdone so, . . . the Batson challenge with respect to [the woman from thesecond panel] is denied. The [c]ourt need not rule further . . . with respect to [thewoman from the second panel]. Do either/or both of you wish to be heard further as relates toanything else before we move on to the next potential juror?"[FN1]At that point, defense counsel affirmatively stated that he had nothing further to add.
On this record, while we agree with the dissent that the Batson challenge was timelymade because it was made before the end of jury selection (see People v Battle, 299AD2d 416 [2002]), we nonetheless find that defendant's claim with respect to the two women onthe first panel is unpreserved. While defense counsel referred to the women on the first panel inalleging that the People were engaging in a pattern of exclusion, he did not expressly indicatethat he was requesting race-neutral reasons for their exclusion (see People v James, 99NY2d 264, 271 [2002]). Moreover, the record demonstrates that, after the People's challenge tothe [*3]woman from the second panel was discussed, defensecounsel again mentioned the exclusion of the two women from the first panel in support of hiscontention of a pattern of discrimination. When asked by Supreme Court to respond, the Peoplestated that neither woman had been excluded based upon her race. The court then inquired ifdefense counsel wanted to respond and, although this presented defense counsel with anopportunity to clarify his challenge, he did not do so. "By accepting the People's explanationwithout any additional objection at a time that it could have been addressed, defendant failed topreserve a challenge to [the two women from the first panel]" (People v James, 99 NY2dat 272 ["It is incumbent upon the moving party to be clear about any person still claimed to beimproperly challenged"]; see People vKnowles, 79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]). In any event,it is "the moving party's burden to make a record that would support a finding of pretext" and, bynot responding to the People's explanation for excluding those two women, defendant did notsatisfy his "ultimate burden of persuading the court" that the People's exclusions were improper(People v Smocum, 99 NY2d 418, 422 [2003]).[FN2]
Defendant next argues that Supreme Court should have suppressed the evidence of thepacket of crack cocaine he sold to the informant because Dirk Budd, one of the detectives whoorchestrated the sale, did not testify as to what he did with the packet of crack cocaine afterreceiving it from the confidential informant. "The established rule in showing the authenticity ofa fungible item of evidence permits the item's admission into evidence without the testimony ofeach individual through whose hands the evidence passed where circumstances providereasonable assurances of the identity and unchanged nature of the proposed evidence" (Peoplev Pearson, 224 AD2d 779 [1996]; see People v Julian, 41 NY2d 340, 343 [1977]).Here, testimony at trial established that the evidence custodian from the Ulster County Sheriff'sOffice found the packet containing the crack cocaine in the evidence drop box. Theaccompanying paperwork indicated that it had been placed there by Budd and that it was to betransported to the State Police crime laboratory for testing. The packet was sealed in an evidencebag and processed according to established procedures under normal circumstances. At trial, thewitnesses who handled the packet testified that they recognized the packet and that it was in thesame or substantially the same condition. Considering the totality of the circumstances presentedhere, reasonable assurances as to the identity and unchanged nature of the packet exist,notwithstanding the fact that Budd did not specifically testify that it was he who placed thepacket in the evidence drop box. Moreover, it is well settled that any gaps in the chain of custodyaffect only the weight of the evidence to be accorded by the jury, not its admissibility (see People v Hawkins, 11 NY3d484, 494 [2008]; People vGilmore, 72 AD3d 1191, 1192-1193 [2010]).
Mercure, A.P.J., and Kavanagh, J., concur.[*4]
Rose, J. (concurring in part and dissenting in part). Wedisagree with the majority's conclusion that defendant did not preserve his challenge to theexclusion of jurors from the first panel and, therefore, we respectfully dissent from that part ofthe majority's decision. The record reflects that, after the People exercised a peremptorychallenge to an African-American member of the second panel, defendant's counsel made aBatson challenge (see Batson v Kentucky, 476 US 79 [1986]) with respect to thatjuror and "two black females on the first panel to which the prosecution exercised peremptories."After the People provided a race-neutral explanation as to the juror from the second panel,counsel for defendant stated that all three of the jurors at issue had indicated that they would befair and impartial and that "the People have been excluding those on the panel that are of thesame race as the [d]efendant." The prosecutor then stated that he needed to get his paperwork ifhe was going to be required to give a reason for dismissing the two jurors from the first panel.Supreme Court allowed him to get his papers, but also left open the question of whether he wasgoing to require a reason for those jurors. The questionnaires for the two jurors from the firstpanel were then marked as court exhibits and, in response to the court's question of whether hewished to be heard, the prosecutor merely stated that neither of the jurors had been dismissed dueto race. Supreme Court then held that there had been no challenge to the two jurors from the firstpanel because defendant did not make a record at the time they were excused, concluded that thePeople were only required to provide a race-neutral reason for dismissing the juror from thesecond round and accepted the explanation as to that juror as valid.
In our view, defendant sufficiently articulated his Batson challenge to all three jurors(see People v James, 99 NY2d 264, 270-271 [2002]). As the Batson challengewas timely made, Supreme Court erred in only requiring the People to provide a race-neutralreason for the challenge to the third juror (see People v Perez, 37 AD3d 152, 154 [2007]; People vBattle, 299 AD2d 416 [2002]; People v Ramirez, 295 AD2d 542, 542 [2002]).Accordingly, we would hold the appeal in abeyance to afford the People the opportunity toestablish nonpretextual reasons for the initial challenges at an evidentiary hearing (see Peoplev Battle, 299 AD2d at 416; People v Ramirez, 295 AD2d at 542; People vPagano, 207 AD2d 685 [1994]). Garry, J., concurs. Ordered that the judgment is affirmed.
Footnote 1: We respectfully disagree withthe dissent's interpretation of the record that Supreme Court did not require the People to providerace-neutral reasons because the court believed that "there had been no challenge to the two priorjurors because defendant did not make a record at the time they were excused."
Footnote 2: Even if we agreed with thedissent's view on this issue, and assuming that the Assistant District Attorney who exercised therelevant first two peremptory challenges is still so employed, it will certainly be problematic toexpect him to clearly and accurately state at a hearing the race-neutral reasons for thosechallenges now, more than two years later, and so a new trial would likely be a better remedy.