| People v Jones |
| 2008 NY Slip Op 00864 [48 AD3d 1116] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lionel Jones,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), renderedSeptember 13, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is affirmed and the matter is remittedto Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). He contends that County Court erred in refusing to suppress evidence seized from hisvehicle because the police engaged in subtle psychological coercion in obtaining his consent tosearch the vehicle, rendering his consent involuntary. That contention is not preserved for ourreview (see CPL 470.05 [2]), and we decline to exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject thefurther contention of defendant that the police officer lacked the requisite "founded suspicion thatcriminal activity [was] afoot" to justify his request to search the vehicle (People v Tejeda,217 AD2d 932, 933 [1995], lv denied 87 NY2d 908 [1995]; see generally People vHollman, 79 NY2d 181, 185-186 [1992]). Also contrary to the contention of defendant, thecourt properly denied his Batson challenge inasmuch as he failed to meet his burden ofestablishing a prima facie case of discrimination (see generally People v Bolling, 79NY2d 317, 320 [1992]). Finally, the sentence is not unduly harsh or severe.
All concur except Pine, J., who dissents and votes to hold the case, reserve decision andremit the matter to Erie County Court for a hearing in accordance with the followingmemorandum.
Pine, J. (dissenting). I respectfully dissent. In my view, defendant met his burden ofestablishing a prima facie case of discrimination in the jury selection process pursuant to thecriteria set forth in Batson v Kentucky (476 US 79 [1986]) and its progeny. Defendantsubmitted sufficient prima facie evidence "to permit [County Court] to draw an inference thatdiscrimination ha[d] occurred" with respect to the prosecutor's peremptory challenge to a blackwoman who had graduated from high school and had lived in the same home in the communityfor 37 years, and who was employed by the United States Postal Service (Johnson vCalifornia, 545 US 162, 170 [2005]). The court erred in rejecting defendant's Batsonchallenge on the ground that no pattern of [*2]discriminationhad been shown because only one peremptory challenge had been used against a black juror, andin failing to require the prosecutor to explain his reason for exercising a peremptory challengewith respect to that prospective juror.
Batson began the evolution of the law involving challenges to the discriminatory useof peremptory challenges in 1986. There, the Supreme Court established a three-step frameworkfor determining whether discrimination occurred in the exercise of peremptory challenges duringjury selection. First, the defendant must "show that he [or she] is a member of a cognizable racialgroup . . . and that the prosecutor has exercised peremptory challenges to removefrom the venire members of the defendant's race" (Batson, 476 US at 96). That part ofBatson has been modified so that it is no longer necessary that the challenged prospectivejuror be in the same cognizable group, racial or otherwise, as the defendant (see Powers vOhio, 499 US 400, 415 [1991]; People v Blunt, 162 AD2d 86 [1990]), although hereboth were in the same cognizable racial group. Second, under Batson, "the defendant isentitled to rely on the fact, as to which there can be no dispute, that peremptory challengesconstitute a jury selection practice that permits 'those to discriminate who are of a mind todiscriminate' " (Batson, 476 US at 96). "Finally, the defendant must show that these factsand any other relevant circumstances raise an inference that the prosecutor used that practice toexclude the venire[persons] from the petit jury on account of their race. This combination offactors in the empaneling of the petit jury, as in the selection of the venire, raises the necessaryinference of purposeful discrimination" (id.). The defendant's initial burden, therefore, isto make a prima facie showing that discrimination may be inferred.
The burden then shifts to the prosecutor to "articulate a neutral explanation[,] related to theparticular case to be tried," for challenging potential jurors based on race (id. at 98). Afterboth sides have been heard, "[t]he trial court then will have the duty to determine if the defendanthas established purposeful discrimination" (id.).
As noted, in this case the court erred in ruling against defendant based on the absence of apattern of discrimination. The Court of Appeals has expressly stated that Batson appliesto the exercise of a peremptory challenge with respect to a single juror (see People vSmocum, 99 NY2d 418, 421-422 [2003]; People v Brown, 97 NY2d 500, 507[2002]).
The court also erred in deciding the Batson issue against defendant without havingfirst required the prosecutor to give his reason for the challenge. The Supreme Court inJohnson, decided in June 2005, addressed the defendant's initial burden under step one inBatson and held that the objector is not required to show that it is more likely than notthat the other party's peremptory challenges, if unexplained, were based on impermissible groupbias (see 545 US at 168). The Supreme Court further stated in Johnsonthat, "in describing the burden-shifting framework, we assumed in Batson that thetrial judge would have the benefit of all relevant circumstances, including the prosecutor'sexplanation, before deciding whether it was more likely than not that the challenge wasimproperly motivated. We did not intend the first step to be so onerous that a defendant wouldhave to persuade the judge—on the basis of all the facts, some of which are impossible forthe defendant to know with certainty—that the challenge was more likely than not theproduct of purposeful discrimination. Instead, a defendant satisfies the requirements ofBatson's first step by producing evidence sufficient" to allow the court to infer thatdiscrimination has occurred (id. at 170).
In my view, defendant was deprived of his constitutional right to a jury selected inaccordance with the decisions of the Supreme Court in Batson and Johnson andthe Court of Appeals in Smocum. Thus, I would hold the case, reserve decision and remitthe matter to County Court for a hearing to afford the prosecutor the opportunity to give hisreason or reasons for the exercise of the peremptory challenge (see People v Jenkins, 75NY2d 550, 559-560 [1990]). Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.