| People v Morgan |
| 2010 NY Slip Op 05890 [75 AD3d 1050] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RichardMorgan, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered September 25, 2006. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree, grand larceny in the third degree, criminal possession of a forgedinstrument in the second degree and criminal possession of a controlled substance in the seventhdegree.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that SupremeCourt erred in permitting the prosecutor to exercise a peremptory challenge to exclude a blackprospective juror. We agree. Following defendant's Batson objection, the prosecutorexplained that she excluded the prospective juror in question because (1) the prospective jurorindicated that she had served on a jury in a criminal case "years ago" but could not recall whatthe case involved; (2) the prospective juror acknowledged that she knew people who usedcocaine; and (3) the prospective juror's son had been accused of a crime "years ago" and was notconvicted. In response to the prosecutor's explanation, defense counsel noted that anotherprospective juror had been accused of a crime and was not challenged by the prosecutor on thator any other ground. Likewise, defense counsel noted that another prospective juror admittedthat he knew someone who used cocaine and that prospective juror also was not challenged bythe prosecutor. Finally, defense counsel contended that the son of the challenged prospectivejuror, "not herself, twenty years ago in Family Court as a juvenile might have had something.And for the fact that she can't remember something that she served on years ago, I don't see howthat's relevant. I haven't heard one race neutral explanation yet." Upon the court's denial ofdefendant's Batson challenge, defense counsel asked the court to articulate the groundsfor its ruling. In response, the court stated only that "[t]he grounds were quite sufficient as statedby the District Attorney," and that "there is no pattern of discrimination."
On the record before us, we agree with defendant that reversal is required based on the [*2]court's denial of defendant's Batson challenge. Trial courtsare required to follow a three-step procedure in determining whether a peremptory challenge hasbeen used to exclude a prospective juror based on race: "As a first step, the moving party bearsthe burden of establishing a prima facie case of discrimination in the exercise of peremptorychallenges. Second, the nonmoving party must give a race-neutral reason for each potential jurorchallenged. In step three, the court determines whether the reason given is merely a pretext fordiscrimination" (People v Smocum, 99 NY2d 418, 420 [2003]; see People vPayne, 88 NY2d 172, 181 [1996]). "The third step of the Batson inquiry requires thetrial court to make an ultimate determination on the issue of discriminatory intent based on all ofthe facts and circumstances presented" (Smocum, 99 NY2d at 422). That determinationpresents a "question of fact, focused on the credibility of the race-neutral reasons" (id.;see generally People v Allen, 86 NY2d 101, 110 [1995]), and thus great deference isaccorded to the determination of the trial court (see Hernandez v New York, 500 US352, 364-365 [1991]; People vCarter, 38 AD3d 1256, 1256-1257 [2007], lv denied 8 NY3d 982 [2007]).
In this case, the prosecutor met her "quite minimal" burden at the second stage of theBatson inquiry (Payne, 88 NY2d at 183), inasmuch as she articulated three"facially neutral" reasons for excluding the prospective juror at issue (Allen, 86 NY2d at109; see Smocum, 99 NY2d at 422). At that point, the court should have proceeded tothe third step of the Batson inquiry, namely, "a determination of pretext"(Smocum, 99 NY2d at 423). Instead, however, the court summarily concluded that theprosecutor's stated reasons for exercising the peremptory challenge in question were sufficientwithout determining whether those reasons "should be believed" (Hernandez, 500 US at365; see Smocum, 99 NY2d at 422-423; see also Dolphy v Mantello, 552 F3d236, 239 [2009]; Jordan v Lefevre, 206 F3d 196, 201 [2000]). The court's acceptance ofthe prosecutor's reasons without an assessment of credibility is particularly troublesome where,as here, the defendant rebutted each of the proffered reasons. Defendant rebutted two of theprosecutor's race-neutral explanations by showing that similarly-situated prospective jurors werenot challenged by the prosecutor. The remaining reason articulated by theprosecutor—that the prospective juror could not remember the specifics of a trial in whichshe had served as a juror more than a decade earlier—was not relevant to the prospectivejuror's qualifications to serve in this case. Contrary to the prosecutor's assertion that theprospective juror did not "remember what the verdict was" in the prior case the record reflectsthat the prospective juror was never asked such a question. Nonetheless, the court merelyaccepted the prosecutor's explanations without determining whether those explanations werepretextual, a practice that, in our view, "falls short of a 'meaningful inquiry into the question ofdiscrimination' " (Smocum, 99 NY2d at 423, quoting Jordan, 206 F3d at 201).
Inasmuch as the court failed to make the requisite credibility determination at step three ofthe Batson inquiry, there is no basis upon which to defer to the trial court on this record(see Dolphy, 552 F3d at 239; Jordan, 206 F3d at 201). Although the dissentconcludes that the prospective juror was not similarly situated to the other prospective jurorswho ultimately were seated because those jurors did not possess all three characteristics cited bythe prosecutor, neither the prosecutor nor the court articulated that ground as a basis for denyingdefendant's Batson challenge. In our view, a post hoc justification for a party's use of aperemptory challenge cannot excuse the failure of a trial court to engage in the requisite inquiryat the time of trial. As the Court of Appeals stated in Payne (88 NY2d at 183), trialcourts "must in all cases make a step three pretext determination . . . [and it is] thetrial courts' responsibility to make a sufficient record to allow for meaningful appellate reviewthat insures and reflects that each party fulfills its burden and has an opportunity for input." Thatrecord should "reflect[ ] the basis for [the trial court's] rulings" (id. at 184). Here, thecourt failed to make any determination on the record with respect to the issue of pretext.Even assuming, arguendo, that the court "implicitly determined" that the prosecutor'sexplanations were not pretextual (People v Parker, 304 AD2d 146, 156 [2003], lvdenied 100 NY2d 585 [2003]), we conclude that such a determination is not supported by[*3]the record in this case (cf. People v Robinson, 1 AD3d 985, 986 [2003], lv denied1 NY3d 633 [2004], lv denied upon reconsideration 2 NY3d 805 [2004]).
We further note that the court also erred in denying defendant's Batson challenge onthe ground that there was "no pattern of discrimination." It is well established that "a prima faciecase may be made based on the peremptory challenge of a single juror that gives rise to aninference of discrimination" (Smocum, 99 NY2d at 422), and that the "[i]mproperremoval of even a single juror may be a violation of equal protection" (id. at 423). Wetherefore reverse the judgment of conviction and grant a new trial (see People v Wilmot, 34 AD3d1225, 1226 [2006], lv denied 8 NY3d 886 [2007]).
Although we are granting a new trial on Batson grounds and thus need not addressthe contention of defendant that he was deprived of a fair trial by prosecutorial misconduct, wenevertheless note our strong disapproval of the misconduct of the prosecutor on summation inimproperly shifting the burden of proof onto defendant and in improperly vouching for thecredibility of the People's witnesses. Among other objectionable remarks, the prosecutor statedon summation that "[t]he only way that you can find the defendant not guilty of burglary is if youbelieve that he falsely admitted to a crime that he didn't commit." The prosecutor also stated that,"to believe what [defendant] want[s] you to believe, you have to conclude that [two policedetectives] are liars. Two police officers with forty years of experience between them. . . They're going to come in here and perjure themselves on the stand, and riskprosecution themselves, for what? For this?"
Contrary to the further contention of defendant, we conclude that the court properly refusedto suppress his statement to the police on the grounds that the statement was the product of anunlawful arrest and was obtained in violation of his Miranda rights. The record of thesuppression hearing establishes that the police had probable cause to arrest defendant based uponinformation provided by an identified citizen informant and other witnesses (see People v Brito, 59 AD3d 1000[2009], lv denied 12 NY3d 814 [2009]; People v Crews, 162 AD2d 462 [1990],lv denied 76 NY2d 854 [1990]). In addition, the record of the suppression hearingsupports the court's conclusion that defendant knowingly, voluntarily, and intelligently waivedhis Miranda rights before he made his statement to the police (see People v Shaw, 66 AD3d1417, 1418 [2009], lv denied 14 NY3d 773 [2010]). Defendant failed to preserve forour review his challenge to the legal sufficiency of the evidence inasmuch as he made only ageneral motion for a trial order of dismissal (see People v Gray, 86 NY2d 10, 19 [1995]).In addition, viewing the evidence in light of the elements of the crime of burglary as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
In view of our determination with respect to the Batson issue, we do not addressdefendant's remaining contentions.
All concur except Scudder, P.J., and Carni, J., who dissent and vote to affirm in thefollowing memorandum.
Scudder, P.J., and Carni, J. (dissenting). We respectfully disagree with the conclusion of ourcolleagues that Supreme Court erred in denying defendant's Batson challenge. Wetherefore dissent.
While the majority criticizes the court for failing to conduct a "meaningful inquiry into thequestion of discrimination," we note that this Court has frequently approved the trial court'spractice of "implicitly" determining that race-neutral explanations offered by the prosecutor arenot pretextual (see e.g. People vDickerson, 55 AD3d 1276, 1277 [2008], lv denied 11 NY3d 924 [2009]; People v Carmack, 34 AD3d1299, 1301 [2006], lv denied 8 NY3d 879 [2007]; People v Dandridge, 26 AD3d779, 780 [2006]). In addition, the court's determination that the race-neutral reasons offeredby the prosecutor are not pretextual is entitled to deference (see People v Wells, 7 NY3d 51, 59 [2006]; [*4]Dickerson, 55 AD3d at 1277; Dandridge, 26 AD3d at780). Judicial deference is especially appropriate where, as here, the assessment turns on thecredibility of the attorney exercising the challenge (see People v Hernandez, 75 NY2d350, 356 [1990], affd 500 US 352 [1991]). Although the majority concludes that thecourt failed to make "any" determination on the record as to the prosecutor's credibilityon the issue of pretext, we are mindful of the well-settled principle that "[t]rial courts. . . need not recite a particular formula of words, or mantra" in applying the thirdBatson prong (Dolphy v Mantello, 552 F3d 236, 239 [2009]). "The trial court isnot compelled to make intricate factual findings in connection with its ruling in order to complywith Batson" (Messiah v Duncan, 435 F3d 186, 198 [2006]). The Second Circuitin Messiah cited Miller-El v Cockrell (537 US 322, 347 [2003]), which as setforth in Messiah explains that " 'a state court need not make detailed findings addressingall the evidence before it' to render a proper Batson ruling" (Messiah, 435 F3d at198). "As long as a trial judge affords the parties a reasonable opportunity to make theirrespective records, he [or she] may express [a] Batson ruling on the credibility of aproffered race-neutral explanation in the form of a clear rejection or acceptance of aBatson challenge" (id., citing McKinney v Artuz, 326 F3d 87, 100[2003]). The court in Messiah quoted from McKinney for the proposition that, "'[a]lthough reviewing courts might have preferred the trial court to provide express reasons foreach credibility determination, no clearly established federal law required the trial court to doso.' " (Messiah, 435 F3d at 198, quoting McKinney, 326 F3d at 100.)
Here, after being provided with an opportunity to satisfy his "ultimate burden of persuadingthe court" that the prosecutor's race-neutral reasons were pretextual (People v Smocum,99 NY2d 418, 422 [2003]), defense counsel requested that the court articulate the grounds fordenying defendant's Batson challenge. In response, the court stated that "[t]he groundswere quite sufficient as stated by the District Attorney." In our view, that " 'unambiguousrejection' " of defendant's Batson challenge demonstrates with sufficient clarity that thetrial court (1) deemed defendant to have failed to meet his ultimate burden of showing that theprosecutor's proffered race-neutral explanations were pretextual and (2) credited the prosecutor'srace-neutral explanations for striking the subject venireperson (Dolphy, 552 F3d at 239,quoting Messiah, 435 F3d at 198). Thus, we conclude that the court fulfilled its duty torule at the so-called "step three" of the Batson framework by expressing its intention torefuse to strike the subject venireperson after listening to the challenge, the race-neutralexplanations and the arguments of the prosecutor and defense counsel.
We therefore cannot agree with the majority's conclusion, apparently based upon the absenceof formulaic words, a "talismanic recitation of specific words," or a credibility mantra, that thecourt failed to make any determination as to pretext or the prosecutor's credibility (Galarza vKeane, 252 F3d 630, 640 n 10 [2001]).
The record establishes that the prosecutor offered three race-neutral reasons for exercisingthe peremptory challenge in question. First, the venireperson's son was accused but not convictedof a crime because, as the venireperson described it, the case was "thrown out." This is arace-neutral reason for exercising a peremptory challenge (see People v Noone, 8 AD3d 97, 98 [2004]). Second, thevenireperson stated that she knew persons who used cocaine—the same controlledsubstance supporting one of the counts of the indictment against defendant. As the majorityproperly concludes, this is also a race-neutral explanation.
Third, the venireperson was unable to provide details of the nature or outcome of a criminaltrial in which she served as a juror. The majority concludes that the venireperson's prior juryservice is "irrelevant" to the service of the venireperson in this case. We disagree. A peremptorychallenge based upon prior jury service is not only relevant and race-neutral but, in addition, it is"not 'pretextual on [its] face' " (People v Richie, 217 AD2d 84, 89 [1995], lv denied88 [*5]NY2d 940 [1996], quoting People v Dixon,202 AD2d 12, 18 [1994]).
The majority concludes that defendant rebutted two of the prosecutor's race-neutralexplanations by showing that "similarly-situated" venirepersons were not challenged by theprosecutor. Thus, because the majority has placed this characterization upon the comparativeanalysis, and not because it was specifically articulated by the prosecutor, we are compelled toaddress it herein. In our view, the record does not support the conclusion that the othervenirepersons not challenged were "similarly situated" as the challenged venireperson. One ofthe venirepersons shared the singular characteristic of having been accused, but not convicted, ofa crime. However, this venireperson did not share the characteristics of prior jury service andknowing anyone who used cocaine. The other venireperson, also described by the majority as"similarly situated," shared the singular characteristic of knowing persons who used cocaine.Importantly, that venireperson did not share the characteristics of prior jury service and havinghad a family member accused but not convicted of a crime.
Thus, in our view, although the challenged venireperson shared one similar characteristicwith each of two other venirepersons, it is not accurate to describe all three venirepersons as"similarly situated." Indeed, "uneven application of neutral factors may not always indicatepretext, however, but simply an incomplete understanding of the full reasons for the prosecutor'sdecision to seat some jurors while challenging others" (People v Allen, 86 NY2d 101,110 [1995]).
Defendant, as the moving party, had the ultimate burden of persuading the court that theprosecutor's reasons were merely a pretext for intentional discrimination (see People vPayne, 88 NY2d 172, 183-184 [1996]). Inasmuch as the People met their burden by "'offering [three] facially neutral reason[s] for the challenge—even if [those] reason[s][were] ill-founded—so long as the reason[s] [do] not violate equal protection. . . , we cannot say that the prosecutor's justifications for the use of the peremptorychallenge were inadequate' " (Wells, 7 NY3d at 59).
We have reviewed the remaining contentions of defendant that were not addressed by themajority in light of its Batson determination, and we conclude that they are withoutmerit. We therefore would affirm the judgment. Present—Scudder, P.J., Peradotto, Carni,Green and Gorski, JJ.