| People v Wilson |
| 2010 NY Slip Op 04436 [73 AD3d 606] |
| May 25, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marcus Wilson, Appellant. |
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Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered January 31,2007, convicting defendant, after a jury trial, of coercion in the first degree, and sentencing him,as a second felony offender, to a term of 3 to 6 years, reversed, on the law, and the matterremanded for a new trial.
Defendant appeals from a conviction of coercion in the first degree stemming from hisalleged physical and sexual abuse of his girlfriend. When the case was initially before us, weheld that the prosecutor's use of his peremptory challenges (five), at the end of the first round ofjury selection, all against men, established a prima facie case of gender discrimination, requiringthe prosecutor to give neutral explanations for those challenges (People v Wilson, 65 AD3d 956[2009]). This Court held the appeal in abeyance, and remanded the matter to Supreme Court tohold an evidentiary hearing concerning whether the prosecutor exercised his peremptorychallenges in accordance with Batson v Kentucky (476 US 79 [1986]).
Thereafter, on November 20, 2009, Supreme Court held the required Batson hearing.After reviewing the notes taken contemporaneously with the exercise of his peremptorychallenges, the prosecutor proffered reasons for four of the five prospective male jurors inquestion. He explained that because he preferred jurors with a college education, he peremptorilychallenged two prospective male jurors who "had not progressed beyond high school." Heperemptorily challenged a third prospective male juror who had reported being involved in acontentious landlord and tenant dispute. The prosecutor peremptorily challenged a fourthprospective male juror because he had expressed strong animus toward lawyers. The prosecutor,however, had no recollection of the reason he exercised a peremptory challenge against a fifthprospective male juror. Nor did the prosecutor's contemporaneous notes contain any informationabout this prospective male juror which may have helped him refresh his recollection on thesubject.
By a decision and order dated March 10, 2010, Supreme Court found that the prosecutorprovided gender neutral reasons for the exercise of peremptory challenges for "three of the fourmale jurors who [were] the subject of the hearing." However, as fully detailed above, the [*2]prosecutor in fact provided explanations for four of the five maleprospective jurors in question. The one prospective male juror overlooked by Supreme Court inits decision was peremptorily challenged by the prosecutor because "he had not progressedbeyond high school." This is the same explanation proffered by the prosecutor for peremptorilychallenging another prospective male juror and which Supreme Court found in its decision to bea gender neutral explanation. Ultimately, Supreme Court did not proceed to step three of theBatson analysis because it found that "a failure of memory signifies that the party whostruck the juror has not met his or her burden of providing a neutral explanation" for thatprospective male juror.
We agree with Supreme Court. When the prosecutor was unable to recall why he hadexercised a peremptory challenge against one of the five prospective male jurors in question, he,in essence, failed to provide any justification for this exclusion (seePeople v Davis, 253 AD2d 634 [1998]; People v Dove, 172 AD2d 768 [1991], lvdenied 78 NY2d 1075 [1991]; People v Sandy, 164 AD2d 898 [1990]; People vBozella, 161 AD2d 775, 776 [1990]; People v Mims, 149 AD2d 948 [1989], lvdenied 74 NY2d 744 [1989], lv dismissed 76 NY2d 792 [1990]). Unable to offer agender neutral explanation for challenging the subject prospective male juror, the prosecutorfailed to meet his burden of overcoming the presumption of discrimination found by this Court(People v Allen, 86 NY2d 101, 109 [1995]).
Contrary to the prosecutor's allegations, it is of no moment that he provided putative genderneutral explanations as to the other four prospective male jurors. Because the exclusion of even asingle juror on gender grounds is constitutionally forbidden (see People v Allen, 86NY2d 101 [1995]; People v Stephens, 84 NY2d 990 [1994]), defendant has sustained hisBatson claim and a new trial must be ordered (see People v Irizarry, 165 AD2d715 [1990] [Batson violation occurred based upon gender discrimination where the trialcourt found that the prosecutor satisfactorily explained the challenges to seven out of nineprospective women jurors]; People v Blunt, 176 AD2d 741 [1991]; cf. People vJenkins, 75 NY2d 550, 558-559 [1990] ["For the purposes of equal protection, theconstitutional violation is the exclusion of any blacks solely because of their race"]).
In light of our reversal on this ground and remand for a new trial, we do not addressdefendant's remaining claims, except that we find the verdict was not against the weight of theevidence. Concur—Moskowitz, Renwick and Freedman, JJ.
Gonzalez, P.J., and Friedman, J., dissent in a memorandum by Gonzalez, P.J., as follows: Idissent. Nothing in the majority's decision alters my position, articulated in the prior appeal ofthis case (see People v Wilson, 65AD3d 956 [2009]), that the defense did not meet its initial burden of establishing a primafacie case of discriminatory exercise of peremptory challenges pursuant to the dictates ofBatson v Kentucky (476 US 79, 96-98 [1986]). I recognize that the failure to recall the basisfor a challenge does not constitute a neutral explanation [*3]therefor. However, I would affirm the conviction on the ground thatthere was no record basis to reopen the Batson application.