| People v Powell |
| 2012 NY Slip Op 01502 [92 AD3d 610] |
| February 28, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Melville Powell, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell T. Wiley, J., at motions; Arlene R.Silverman, J., at jury trial and sentencing), rendered October 22, 2008, convicting defendant ofcriminal possession of a controlled substance in the third and fifth degrees and two counts ofassault in the second degree, and sentencing him to an aggregate term of one year, unanimouslyreversed, on the law, and the matter remanded for a new trial.
The trial court erred when it granted the People's reverse-Batson application (seeBatson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], certdenied 498 US 824 [1990]), and seated three jurors despite defendant's peremptorychallenges. Even after according great deference to the court's determination, we find that therecord fails in all respects to support the court's finding that the nondiscriminatory reasonsprovided by defense counsel for the challenges in question were pretextual.
Defense counsel provided ethnicity-neutral explanations for challenging the three jurors atissue. Counsel explained that she usually "kick[ed] off people with technical type jobs or finance.I find they are not favorable to the defense because they have more income and I believe typicallythey are not favorable." Two of the jurors were investment bankers, and one had a"technical-type" job as an interface developer. Counsel also explained that the juror with atechnical job had prior jury service, which counsel viewed as a negative factor for the defense.
The court erroneously found these explanations to be pretextual. Notably, the court remarkedthat it "did not hear . . . anything about [the challenged jurors] in particular thatwould render them unfair or fit." However, counsel was not required to provide an explanationthat would have sustained a challenge for cause (see People v Allen, 86 NY2d 101, 109[1995]). The court's determination that persons in the finance industry were a "class" of peopleentitled to protection was erroneous. A particular profession, as opposed to race or gender, is nota class entitled to constitutional protection against discrimination.
Furthermore, there was no evidence of disparate treatment by defense counsel of similarlysituated panelists. We note that the court based its finding of pretext, in part, on the fact thatdefense counsel did not challenge a juror whose wife was in finance. However, the [*2]characteristics of a spouse should not be attributed to a prospectivejuror (see People v Minton, 52AD3d 234, 235 [2008], lv denied 11 NY3d 791 [2008]).
In addition, counsel explained that she challenged the interface developer on the basis of herprior jury service as well as her technical job. Nevertheless, neither the prosecutor nor the courtaddressed this explanation.
We find it unnecessary to reach defendant's remaining claims of error, except that we findthat the motion court properly denied defendant's suppression motion without granting a hearing.The People provided detailed information about the factual predicate for defendant's arrest, anddefendant's simple assertion of innocent behavior at the time of his arrest failed to dispute thePeople's allegations (see People vFrance, 12 NY3d 790 [2009]). Concur—Mazzarelli, J.P., Andrias, Catterson,Abdus-Salaam and Manzanet-Daniels, JJ.