| People v Quiles |
| 2010 NY Slip Op 05590 [74 AD3d 1241] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Quiles, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(DiBella, J.), rendered August 31, 2007, convicting him of burglary in the second degree, petitlarceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the matter is remitted to the Supreme Court, Westchester County, to hear andreport, in accordance herewith, on the defendant's challenge to the prosecutor's exercise of aperemptory challenge as to prospective juror Morant, and the appeal is held in abeyance in theinterim. The Supreme Court shall file its report with all convenient speed.
In Batson v Kentucky (476 US 79 [1986]), the Supreme Court of the United Statesheld that the Equal Protection Clause of the United States Constitution prohibits a prosecutorfrom exercising peremptory challenges to strike prospective jurors on the basis of race. In theyears since Batson, the New York Court of Appeals has adopted the holding ofBatson under the New York State Constitution and extended it to gender or any otherstatus that implicates equal protection concerns, and to discriminatory practices by defensecounsel (see People v Luciano, 10 NY3d 499, 502-503 [2008]). Determining whether aparty has exercised peremptory challenges to strike potential jurors for reasons that implicateequal protection concerns is a three-step process. First, the moving party must make "a primafacie case, based on the record of the voir dire, that his or her adversary is exercising peremptorychallenges to remove prospective jurors on the basis of their membership in a constitutionallycognizable class protected under the Equal Protection Clause of the United States and New YorkState Constitutions" (People v Hall, 53 AD3d 552, 554 [2008], citing Hernandez vNew York, 500 US 352, 358 [1991]; see People v James, 99 NY2d 264, 270 [2002];People v Allen, 86 NY2d 101, 104 [1995]). Second, if the moving party makes such aprima facie showing, the burden shifts to the adversary to offer reasons for the disputedperemptory challenges unrelated to the jurors' membership in the protected class (see Peoplev James, 99 NY2d at 270; People v Allen, 86 NY2d at 104; People v Hall,53 AD3d at 554). Third, if such reasons are offered, the burden shifts back to the moving party toconvince the court that the reasons, although facially neutral, are pretextual and not the genuinereasons for the strikes (see People v Smocum, 99 NY2d 418, 422 [2003]; People vHall, 53 AD3d at 554).[*2]
In the defendant's first Batson application, thedefendant argued that the prosecutor used peremptory challenges to strike all of the black andHispanic potential jurors. The record shows that the prosecutor used a peremptory challenge tostrike one Hispanic potential juror and another potential juror whom the prosecutor believed tobe Asian, but defense counsel perceived to be "either black or south Asian." The trial courtdenied the defendant's Batson application. We agree with the trial court that thedefendant failed to make a prima facie case of discrimination with respect to his first Batsonapplication (see People v Severino, 44 AD3d 1077, 1078 [2007]).
During the next day of jury selection, the prosecutor used a peremptory challenge to strikepotential juror Young, a black woman. Defense counsel renewed his Batson applicationand stated his concern that the prosecutor, through the use of peremptory challenges, wasstriking every "dark skinned person" and person he perceived to be Hispanic. The prosecutorreplied that there was no pattern of striking jurors on the basis of race, and explained that sheused a peremptory challenge to strike Young because she had a background in substance abusecounseling and was active in her church. According to the prosecutor, since the defense wasalleging that there was drug use by the defendant, she believed that Young would be sympatheticto the defendant. The trial court found that the defendant failed to meet his burden of making aprima facie case of discrimination and, in any event, that the prosecutor provided a faciallyneutral reason for striking Young and that the defendant failed to meet his ultimate burden ofestablishing that the prosecutor's reason was pretextual.
Ordinarily, where a prosecutor offers a race-neutral explanation for a peremptory challenge,and the trial court rules on the ultimate issue of intentional discrimination, the preliminary issueof whether the defendant made a prima facie showing is deemed moot (see Hernandez v NewYork, 500 US at 359; People v Smocum, 99 NY2d at 423). Here, however, the trialcourt specifically held that the defendant did not meet his prima facie burden as to his Batsonapplication with respect to Young. Accordingly, its comments regarding the ultimate issueof intentional discrimination were merely dicta. Moreover, we agree with the trial court that thedefendant did not meet his prima facie burden (see generally People v Hall, 53 AD3d at554).
Subsequently, the prosecutor exercised a challenge for cause to strike potential juror Morant,a black woman who worked as a bank loan officer. The prosecutor argued that, based on herquestions to Morant during voir dire, she believed that the fact that Morant had majored inpsychology in college would affect her deliberations and would cause her "to think about whythe defendant was behaving as he did." The defendant renewed his Batson application.The trial court rejected the prosecutor's challenge for cause, stating that Morant was unequivocalthat she would accept and follow the law as charged to her by the court, and she understood andaccepted that motive was not an element of the crimes charged. The prosecutor then used aperemptory challenge to strike Morant. Defense counsel renewed his Batson application,asserting that Morant would be the fourth person of color struck by the prosecutor. Defensecounsel argued that Morant had two relatives who were detectives and would ordinarily be ajuror that was favorable to the prosecution, except that she was a person of color. Defensecounsel asserted that any reasons given by the prosecutor for striking Morant were pretextual.
The prosecutor responded that she used a peremptory challenge to strike Morant becauseMorant had reservations as to whether she could disregard her psychology background. The trialcourt disagreed with the prosecutor's assessment, and stated that every person on the jury wouldbe curious as to why an individual did what he or she was accused of doing. Nonetheless, thetrial court allowed the prosecutor to exercise the peremptory challenge to strike Morant.
The trial court did not perform the third step of the Batson procedure with respect toMorant, in that it made no finding as to whether the reasons offered by the prosecutor, althoughfacially neutral, were pretextual and not the genuine reasons for the challenge (see People vJones, 88 NY2d 172, 184 [1996]; People v Hall, 53 AD3d at 555; People vMackenzie, 231 AD2d 740, 741 [1996]).
Accordingly, we hold the appeal in abeyance and remit the matter to the Supreme Court,Westchester County, to hear and report on the third step of the Batson process withrespect to potential [*3]juror Morant. We decide no other issuesat this time. Skelos, J.P., Santucci, Belen and Hall, JJ., concur.