| People v Grant |
| 2015 NY Slip Op 04505 [128 AD3d 1088] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aerris Grant, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel) forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, Emil Bricker, and Sharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered December 15, 2010, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and the facts, and a new trial isordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's identity as the perpetrator of the crime beyond a reasonable doubt (see People v Ayala, 121 AD3d1124 [2014]; People vBaksh, 43 AD3d 1072 [2007]; People v Schouenborg, 42 AD3d 473 [2007]). Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
We are nevertheless compelled to reverse the defendant's conviction because of thetrial court's erroneous application of the Batson doctrine (see Batson vKentucky, 476 US 79 [1986]).
At the conclusion of the second round of jury selection, the prosecutor raised areverse-Batson objection, asserting that "the defense challenged every Asianperson on the panel": two in the first round and three in the second round. The trial courtthen demanded race-neutral reasons for defense counsel's challenges to those fiveprospective jurors. After defense counsel stated her reasons, the court granted defensecounsel's peremptory challenges as to three of the five prospective jurors and denied thechallenges as to two prospective jurors.
On appeal, the defendant contends that the trial court erred in denying theperemptory challenges as to those two prospective jurors.
The racially motivated use of peremptory challenges (CPL 270.25) by either the[*2]defense or the prosecution violates the EqualProtection Clause of both the state and federal constitutions (see US Const 14thAmend; NY Const, art I, § 11; Hernandez v New York, 500 US 352[1991]; Batson v Kentucky, 476 US at 86; People v Hecker, 15 NY3d 625, 650 [2010]; People vKern, 75 NY2d 638 [1990]; People v Miller, 266 AD2d 478 [1999]).
"In Batson, the United States Supreme Court formulated a three-step test toassess whether peremptory challenges have been used to exclude potential jurors on thebasis of race, gender, or other protected categories. In step one, the moving party mustmake a prima 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. If the moving party makes a prima facie showing, theinquiry proceeds to step two, and the burden shifts to the adversary to provide a faciallyneutral explanation for the challenge. If the nonmoving party offers facially neutralreasons supporting the challenge, the inference of discrimination is overcome. Oncefacially 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 courtmust determine whether the proffered reasons are pretextual" (People v Bell, 126 AD3d718, 719 [2015] [citations and internal quotation marks omitted]; see People v Luciano, 10NY3d 499 [2008]; People vCarrington, 105 AD3d 970 [2013]; People v Richie, 217 AD2d 84[1995]). A trial court's step-three determination that the facially race-neutral reasons for anonmoving party's peremptory challenges to particular jurors were pretextual is entitledto great deference on appeal and will not be disturbed where such determination issupported by the record (see People v Hecker, 15 NY3d at 661; People vCarrington, 105 AD3d at 970).
Here, defense counsel's reasons for striking one of the two subject prospective jurorswere based on her having a son-in-law and two daughters who are attorneys, her status asa crime victim, and her responses during voir dire indicating "problems that she wouldhave with the proof beyond a reasonable doubt standard." The prosecutor countered withthe sole argument that the proffered reason that the subject prospective juror was a crimevictim was pretextual, identifying two other prospective jurors (hereinafter K.A.M. andG.A.) who had been seated despite being crime victims. In denying the peremptorychallenge as to the subject prospective juror, the court found that the reasons, i.e., hercrime victim status and her son-in-law's and daughters' employment status, werepretextual. The court did not examine the third reason for the challenge: the subjectprospective juror's claimed problems with the proof beyond a reasonable doubtstandard.
The step-two reasons proffered by defense counsel were facially race-neutral (seePeople v Payne, 88 NY2d 172, 186 [1996]; People v Marcus, 101 AD3d 1046 [2012]; People v Wilson, 23 AD3d682 [2005]).
The record does not support the trial court's step-three finding of fact as to thesubject prospective juror, to wit, that other prospective jurors who were crime victimsand who indicated that the incident would not affect them had nevertheless been seated."[A]ssurances from a challenged prospective juror that he or she could assess theevidence in a fair manner even though he or she was a crime victim are irrelevant to thedetermination of whether the basis of a peremptory challenge is pretextual" (People vWilson, 23 AD3d at 682-683; see People v Mack, 220 AD2d 617, 619[1995]). Nonetheless, the record indicates that defense counsel treated such jurorsconsistently by exercising a peremptory challenge for another prospective juror who wasnot Asian but was a crime victim who provided assurance that nothing in her experiencewould affect her as a juror. In addition, although defense counsel did not exerciseperemptory challenges for K.A.M. and G.A., defense counsel sufficiently distinguishedthe experiences of those jurors from that of the subject prospective juror, who had beenrobbed at gunpoint (see People v Wilson, 23 AD3d at 682). Consequently, therecord supports a finding that defense counsel had legitimate, nonpretextual reasons forchallenging prospective jurors based on their crime victim status (see People vSimpson, 254 AD2d 150 [1998]; People v Richie, 217 AD2d at 89; cf. People v Quito, 43 AD3d411 [2007]; People v Reyes, 248 AD2d 493 [1998]; People v Vega,239 AD2d 615 [1997]).
Similarly, defense counsel's proffered rationale for exercising a peremptory challengeagainst the subject prospective juror based on her son-in-law and two daughters beingattorneys "had some basis in accepted trial strategy" (People v Hecker, 15 NY3dat 663 [internal quotation marks [*3]omitted]; seePeople v Payne, 88 NY2d at 186; People v Powell, 92 AD3d 610 [2012]).
The specific contentions raised by the People on appeal regarding the subjectprospective juror's claimed problems with the proof beyond a reasonable doubt standard,inter alia, that her response was effectively favorable to the defense, were not articulatedbefore the trial court and, thus, are not preserved for appellate review (see CPL470.05 [2]; People v Clarke,64 AD3d 612 [2009]; People v Cunningham, 21 AD3d 746, 748-749 [2005]; People v Brown, 17 AD3d283 [2005]; People v Fuller, 302 AD2d 405 [2003]; People vHolland, 268 AD2d 536 [2000]). In any event, the fact that the reason offeredcorresponds to a valid for-cause challenge demonstrates its race-neutral character (seeHernandez v New York, 500 US at 363; People v Williams, 107 AD3d 746 [2013]; People vMartinez, 207 AD2d 807 [1994]).
In light of our determination, we need not consider the defendant's remainingcontentions. Dillon, J.P., Leventhal, Chambers and Maltese, JJ., concur.