| People v Wilson |
| 2009 NY Slip Op 06717 [65 AD3d 956] |
| September 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marcus Wilson, Appellant. |
—[*1]
Appeal from judgment, Supreme Court, New York County (Rena K. Uviller, J.), renderedJanuary 31, 2007, convicting defendant, after a jury trial, of coercion in the first degree, andsentencing him, as a second felony offender, to a term of 3 to 6 years, held in abeyance and thematter remitted to Supreme Court for a Batson hearing for the People to articulateneutral explanations for the exercise of their peremptory challenges and for the court todetermine whether the proffered reasons are pretextual.
The court erred in its determination that defense counsel failed to make a prima facie case ofsexual discrimination in the prosecutor's exercise of peremptory challenges. In this case against adefendant accused of physical and sexual abuse of his girlfriend, during the first round ofchallenges, the prosecution used five peremptory challenges all against men (including twoAfrican-Americans and one Hispanic male). Defense counsel accused the People of using theirchallenges discriminatorily when they challenged "all male[s]" and "[did] not "challenge[ ] asingle female." We disagree with the court's finding that "no pattern [was] established. . . in any of these challenges." The People's use of their challenges constitutedprima facie discrimination, and the trial court erred in failing to require the prosecutor to giveneutral explanations for those challenges (People v Luciano, 44 AD3d 123 [2007], affd on othergrounds 10 NY3d 499 [2008] [defendant's exercise of peremptory challenges against all fivefemale panelists constituted a discriminatory pattern based on gender]; see People vHarris, 283 AD2d 520 [2001] [the People "established a prima facie case of discrimination"when "defense counsel peremptorily challenged four of the five remaining white venirepersonsin the second round of jury selection"]; People v Vega, 198 AD2d 56 [1993], lvdenied 82 NY2d 932 [1994] [the People "established a prima facie case of purposeful racialdiscrimination in the use of peremptory challenges when they established that the defense used 7of its 8 challenges to exclude all but one of the white persons on the panel of 16"]; see also People v Rosado, 45 AD3d508 [2007] [numerical argument sufficient to raise inference of discrimination although notaccompanied by other evidence]; cf.People v Guardino, 62 AD3d 544, 545 [2009] ["While a purely numerical argumentmay give rise to a prima facie showing of discrimination," the numerical argument that four ofsix black female prospective jurors had been stricken by the prosecutor did not warrant [*2]the finding of a prima facie case]). Accordingly, we remand thismatter for a Batson hearing for the People to articulate neutral explanations for theexercise of their peremptory challenges and for the court to determine whether the profferedreasons are pretextual. Concur—Moskowitz, Renwick and Freedman, JJ.
Gonzalez, P.J., and Friedman, J., dissent in a memorandum by Gonzalez, P.J., as follows: Iwould conclude that the court properly denied defendant's Batson challenge. It is unclearfrom both the minutes of the voir dire and defendant's appellate brief exactly what cognizablegroup or groups were the subject of defendant's Batson application. In any event, withregard to any type of unlawful discrimination in the exercise of peremptory challenges by theprosecutor, the defense did not meet its initial burden of establishing an exercise of peremptorychallenges in a manner suggesting either gender- or race-based discrimination (see Batson vKentucky, 476 US 79, 96-98 [1986]). In the first round of jury selection, 16 prospectivejurors were empaneled. Two were disqualified by the court. Nine of the remaining 14 individualswere men, and five were women. The record does not indicate the racial composition of thevenire. Each side had a total of 15 peremptory challenges, and the People used five in the firstround, striking five of the nine men. Two of these men were African-American; one wasHispanic. The defense also used five challenges in the first round, striking three men and twowomen of unknown race.
After the People exercised their last peremptory strike, defense counsel stated:
"Your honor, I'm going to raise a Batson challenge at this point in time. Prosecutionhas challenged Prospective Juror Number One . . . male African American.
"[T]he fourth challenge was for a Hispanic male . . . And now they arechallenging another African American male.
"In other words your Honor, the pattern that I see is the prosecution is discriminatorily usingtheir challenges to exclude men of a minority class, both Hispanic and . . . AfricanAmerican."
Defense counsel also faulted the prosecution for striking a disproportionate number of men,concluding that "they are excluding all the men and we're getting left with an all female jury."The court noted that the People had not challenged two minority males who were in the venire.Defense counsel then stated that the People's challenges were "all male. They haven't challengeda single female. They're all male. And 50 percent are directed against minority males. My clientis African American male. We would like a fair jury." Finding no discernable pattern ofdiscrimination, the court denied defendant's Batson claim, over a defense objection.[*3]
The court then empaneled the second venire, and theprosecutor exercised a peremptory challenge against an African-American woman. Defensecounsel stated:
"Your honor, I raise the Batson issue again. Another African American, this timefemale, has been challenged for no apparent neutral reason.
"the court: Last time it was men.
"[defense counsel]: Minority men. This time, minority female. Used their challenge in aracial manner to exclude—
"the court: I don't believe there is a pattern of racial challenge. Denied."
Defense counsel did not object.
In total, the People used seven peremptory challenges. Five of the seven challenges wereagainst men. Two of these men were African-American and one was Hispanic. One of the twowomen challenged by the People was African-American. The two panels consisted of 13 menand 14 women. The racial composition of the panels is unclear. The record of the voir dire doesnot contain any statements indicating bias or prejudice.
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 79, 89 [1986]). The Supreme Court has extendedthe Batson 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 that "[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]).
Batson sets forth a three-step process for determining whether the People'speremptory challenges have been exercised in a discriminatory manner (see Allen, 86NY2d at 104). First, the defense "must allege sufficient facts to raise an inference that theprosecution has exercised peremptory challenges for discriminatory purposes" (id.). OurCourt of Appeals has further instructed that, the defense must "articulate and develop all of thegrounds supporting the claim, both factual and legal, during the colloquy in which the objectionis raised and discussed" (see People v Childress, 81 NY2d 263, 268 [1993]). If thedefendant makes a prima facie showing, the burden shifts to the prosecution to articulate aneutral explanation for striking the jurors in question. Finally, the trial court must determinewhether the proffered reasons are pretextual (see Allen at 104).
There are no "fixed rules" for determining whether the proponent of a Batson claimhas made a prima facie showing (People v Bolling, 79 NY2d 317, 323-324 [1992]).However, in Batson, the Supreme Court provided two examples of circumstances thatmay satisfy the challenger's initial burden: (1) a pattern of strikes against certain jurors includedin the particular venire and (2) questions and statements during voir dire examination whichsupport or refute an inference of discriminatory purpose (see 476 US at 97). TheSupreme Court has given trial judges broad discretion to act as primary gatekeepers forBatson challenges (see id; see also People v Hache, 174 AD2d 309, 310[1991], lv denied 78 NY2d 923 [1991]).[*4]
Defendant contends that the inference of discriminationcan be drawn from the pattern of the prosecutor's strikes. It is his claim that the record indicates adiscriminatory bias against any or all of three possible groups: (1) men; (2) minority men; and(3) minorities. In Jones v West (555 F3d 90 [2d Cir 2009]), the Second Circuit addressedthe issue of when the composition of stricken jurors alone can establish or refute a "pattern" ofdiscrimination under Batson. The court discussed two measurements that may be made.The first, referred to as the "exclusion rate," measures whether "members of the racial group arecompletely or almost completely excluded from participating on the jury" (id. at 98;see e.g. Johnson v California, 545 US 162 [2005] [prima facie Batson claimestablished where all three black prospective jurors removed from the jury]). The second,referred to as the "challenge rate" measures whether "a party exercise[d] a disproportionate shareof its total peremptory strikes against members of a cognizable racial group compared to thepercentage of that racial group in the venire" (Jones, 555 F3d at 98). To determine the"challenge rate," the record must indicate the number of peremptory challenges used against thegroup at issue, the total number of peremptory challenges exercised, and the percentage of thevenire that belongs to the group (id.). The proponent of the Batson challenge alsobears the burden of developing the factual and legal grounds to support the claim (Overton vNewton, 295 F3d 270, 279 [2d Cir 2002]). In the absence of a record containing sufficientfacts to draw a statistical conclusion, a reviewing court's failure to draw an inference ofdiscrimination cannot be deemed a violation of Batson requirements (People vPratt, 291 AD2d 210 [2002], lv denied 98 NY2d 654 [2002]).
Here, after the first round of jury selection, defense counsel asserted that the prosecutor wasimproperly using his challenges to exclude minority men and men in general. The majorityaccepts this claim, asserting that the fact that five men were challenged by the prosecutor in thefirst round of jury selection was alone sufficient to establish a prima facie case of discrimination.However, this conclusion fails to consider the composition of the venire. Certainly, if the first16-person venire contained only five men, and all were stricken an inference of discriminationwould be raised. By contrast, since the venire was approximately two-thirds men, the fact thatfive were stricken has no legal significance. Moreover, in the second round of the voir dire, thedefense challenged the prosecutor's exercise of a peremptory challenge to strike anAfrican-American woman. This challenge undercut the prior claim that the prosecution wasattempting to eliminate all the men from the jury.
The first venire was composed of approximately 64% men. As the People struckapproximately 50% of them from the venire, and there was no other evidence of bias, the courthad no reason to draw an inference of gender-based discrimination based upon the exclusion rateor the challenge rate (see People v Brown, 97 NY2d 500, 508 [2002] [People's removalof seven African-Americans through exercise of eight peremptory challenges was inadequate,without more, to meet first step under Batson where there were 15 African-Americans inthe venire]; People v Williams, 253 AD2d 901 [1998], lv denied 92 NY2d 986[1998]; see also People v Childress, 81 NY2d at 267).
With respect to defendant's race-based challenge, the defense did not make a record of thetotal number of "minority" men, whether black or Hispanic, in the jury pool, and the racialcomposition of the venire is not otherwise indicated. However, the record does indicate that therewere at least two minority members on the jury. Thus, it is impossible to determine whether theprosecutor disproportionately struck minority males in the first round or whether it [*5]disproportionately struck minorities in the totality of the juryselection process. Accordingly, the Court also properly denied defendant's race-based Batsonchallenge.