| People v Marcus |
| 2012 NY Slip Op 08768 [101 AD3d 1046] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Marcus, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered December 14, 2010, convicting him of burglary in the first degree, robbery in thesecond degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In Batson v Kentucky (476 US 79, 94-98 [1986]), the United States Supreme Courtformulated a three-step test to assess whether peremptory challenges have been used to excludepotential jurors on the basis of race, gender, or other protected categories (see People vSmocum, 99 NY2d 418, 421 [2003]). In step one, the moving party must make a prima faciecase of purposeful discrimination by "showing that the facts and circumstances of the voir direraise an inference that the other party excused one or more jurors for an impermissible reason"(id. at 421). If the moving party makes a prima facie showing, the inquiry proceeds tostep two, and the burden shifts to the adversary to provide a facially neutral explanation for thechallenge. If the nonmoving party "offers facially neutral reasons supporting the challenge, theinference of discrimination is overcome" (People v Allen, 86 NY2d 101, 109 [1995]).Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burdenshifts back to the moving party to prove purposeful discrimination, and " 'the trial court mustdetermine whether the proffered reasons are pretextual' " (People v Hecker, 15 NY3d 625, 634-635 [2010], cert deniedsub nom. Black v New York, 563 US —, 131 S Ct 2117 [2011], quoting People vAllen, 86 NY2d at 104), including whether the reasons apply to the facts of the case, andwhether the reasons were applied to only a particular class of jurors and not to others (seePeople v Richie, 217 AD2d 84, 89 [1995]).
In this case, the inquiry proceeded to step three. After the Supreme Court found that defensecounsel was using his peremptory challenges to challenge male jurors, defense counselchallenged a male juror on the ground that the juror was a chiropractor and had stated, duringvoir dire, that he only "believe[d]" he could be fair. When asked whether he could be fair, thatjuror responded, "I know what my conscious can do. But I don't know what the subconscious[sic]," and was admonished by the court for being "technical." The court seated the juror overdefense counsel's objection, explaining that the juror initially said that he did not believe he couldbe fair, but later explained that he was nervous and reaffirmed his position that he could, in fact,be fair. The [*2]court did not examine the other reason for thechallenge: that the juror was a chiropractor.
The juror's answer to the question of whether he could be fair, which prompted anadmonition from the Supreme Court not to be "technical," was, on its face, a nonpretextualreason to exercise a peremptory challenge. Further, the defendant contends that the fact the jurorwas a chiropractor was a legitimate gender-neutral reason for striking the juror. The Peoplecontend that this reason was pretextual, because defense counsel did not challenge similarlysituated female jurors. However, medical background was related to the facts of the case, sinceproof of the defendant's guilt involved DNA evidence, and defense counsel struck female jurorswith similar backgrounds.
In view of the foregoing, the record does not support the Supreme Court's conclusion thatdefense counsel engaged in purposeful discrimination against men when he exercised aperemptory challenge against the juror seated over his objection. This error mandates reversal(see People v Hecker, 15 NY3d at 662; People v Powell, 92 AD3d 610 [2012]).
Since there must be a new trial, we note that the defendant's recorded telephoneconversations, in which he expressed a desire to kill the witnesses against him, were admissibleas evidence of consciousness of guilt (see People v Torres, 61 AD3d 489 [2009]). However, certaincomments in the prosecutor's summation, which, over objection, vouched for the strength of thePeople's case, repeated over and over again that the defendant wanted the witnesses to die, andspeculated as to the significance of certain comments made during those telephone calls,including the identity of the getaway driver, were improper.
The defendant's remaining contentions need not be addressed in light of our determination.Eng, P.J., Angiolillo, Sgroi and Hinds-Radix, JJ., concur.