| People v Bell |
| 2015 NY Slip Op 01812 [126 AD3d 718] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Bell, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Sheilah Fernandez and Harold V.Ferguson, Jr., of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andHoward B. Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered November 17, 2010, convicting him of manslaughter in the firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
A new trial is necessary because the prosecutor exercised her peremptory challengesin a discriminatory manner (see Batson v Kentucky, 476 US 79 [1986]) as to twoblack prospective jurors. In Batson, the United States Supreme Court formulateda 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 Peoplev Smocum, 99 NY2d 418, 421 [2003]). In step one, the moving party must make aprima facie case of purposeful discrimination by "showing that the facts andcircumstances of the voir dire raise an inference that the other party excused one or morejurors for an impermissible reason" (id. at 421). If the moving party makes aprima facie showing, the inquiry proceeds to step two, and the burden shifts to theadversary to provide a facially neutral explanation for the challenge. If the nonmovingparty "offers facially neutral reasons supporting the challenge, the inference ofdiscrimination is overcome" (People v Allen, 86 NY2d 101, 109 [1995]). Oncefacially neutral reasons are provided, the inquiry proceeds to step three, and the burdenshifts back to the moving party to prove purposeful discrimination, and " 'thetrial court must determine whether the proffered reasons are pretextual' " (People v Hecker, 15 NY3d625, 634-635 [2010], quoting People v Allen, 86 NY2d at 104), includingwhether the reasons apply to the facts of the case, and whether the reasons were appliedto only a particular class of jurors and not to others (see People v Richie, 217AD2d 84, 89 [1995]).
Here, the parties do not dispute that the first and second steps of the Batsoninquiry were satisfied in connection with the subject prospective jurors. As to thethird step, which is disputed by the parties, we agree with the defendant that the faciallyrace-neutral reasons proffered [*2]by the prosecutor forthe use of peremptory challenges against those two prospective jurors werepretextual.
With respect to the first prospective juror, the prosecutor employed a peremptorychallenge to strike him as a juror because of a concern that his position as a churchdeacon would make it difficult for him to sit in judgment of another individual. Althoughthe prospective juror indicated during voir dire that his position as a church deaconwould not affect his decision making, the prosecutor maintained that it was "just [his]feeling that it may be difficult having [someone in] that position to then sit in judgmentof someone."
Contrary to the Supreme Court's determination, the facially race-neutral reasonadvanced by the prosecutor for employing a peremptory challenge was pretextual. Theprosecutor did not offer any explanation for how employment as a church deacon relatedto the factual circumstances of the case or qualifications to serve as a juror (see People v Hall, 64 AD3d665 [2009]; People vPinto, 56 AD3d 494 [2008]; People v Dalhouse, 240 AD2d 420, 421[1997]). Furthermore, the prosecutor's challenge was admittedly based on his "feeling"that a church deacon would have difficulty sitting in judgment of another, and theprosecutor failed to pursue questioning of the prospective juror to ascertain whether thisintuitive feeling was founded in fact (see People v Louis, 239 AD2d 435 [1997];People v Liang Jun Ying, 236 AD2d 630 [1997]; People v Richie, 217AD2d at 89). When the reason advanced for a peremptory challenge relates to a juror'sappearance, deference must be afforded to the trial court's findings with regard to pretext,as the trial court has the distinct advantage of being able to observe the juror (seePeople v Richie, 217 AD2d at 88). However, the same cannot be said when thereason advanced for the challenge is based on the juror's profession or background(see id.). Indeed, it would not "be acceptable for this Court to invoke the ruleproviding for deference to the trial court in matters of credibility in order to rubber stampevery determination relating to the legitimacy of a peremptory challenge"(id.).
With respect to the second prospective juror, the prosecutor exercised a peremptorychallenge because that prospective juror was "shaking his head in agreement" with awhite juror, who was explaining the trouble she would have in reaching a verdict and"deciding the outcome of someone else's life." The second prospective juror, however,indicated that he could convict if the prosecution proved its case beyond a reasonabledoubt. The white juror had been challenged by the prosecution for cause, but thatchallenge was denied, and the prosecution did not use a peremptory challenge to strikeher as a juror.
In light of the prosecutor's failure to exercise a peremptory challenge to strike thewhite juror who actually stated that she would have trouble "deciding the outcome ofsomeone else's life," the prosecutor's reason for challenging the second black prospectivejuror was pretextual (see Peoplev Hall, 64 AD3d 665 [2009]; People v Morrison, 220 AD2d 694, 695[1995]). While uneven application of race-neutral factors does not always indicatepretext (see People v Allen, 86 NY2d at 110), the circumstances here support afinding of pretext, as the prosecutor had a much stronger reason for exercising aperemptory challenge to strike the white juror than the second black prospective juror(see People v Morrison, 220 AD2d at 695). While the defendant's specificcontention in this regard is unpreserved for appellate review (see People v Smith,81 NY2d 875 [1993]), we nonetheless reach the issue in the exercise of our interest ofjustice jurisdiction (see CPL 470.15 [6]).
"For the purposes of equal protection, the constitutional violation is the exclusion ofany blacks solely because of their race" (People v Jenkins, 75 NY2d 550,559 [1990]). Accordingly, the race-based challenges to the two subject prospective jurorsrequire reversal and a new trial. In view of our decision, we need not determine whetherperemptory challenges exercised by the prosecutor with regard to other black prospectivejurors were race-based (see People v Hall, 64 AD3d at 666). Leventhal, J.P., Hall,Austin and Roman, JJ., concur.