| People v Fabregas |
| 2015 NY Slip Op 06253 [130 AD3d 939] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Richard Fabregas, Appellant. |
Patrick Michael Megaro, Uniondale, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Jacqueline Rosenblumand Rebecca L. Abensur of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Grella, J.), rendered July 18, 2011, convicting him of criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that he was deprived of a fair trial as a result of theprosecutor's cross-examination of a correction officer whom the defense called as awitness and who appeared in uniform to testify and identified himself as a correctionofficer, on the basis that the prosecutor sought to elicit testimony which woulddemonstrate that he had been incarcerated pending trial. This contention is without merit.While evidence indicating that a defendant was incarcerated pending trial may impair adefendant's presumption of innocence (see People v Jenkins, 88 NY2d 948, 951[1996]; People v Randolph,18 AD3d 1013, 1015 [2005]; People v Machicote, 251 AD2d 684, 684[1998]; People v Pelt, 161 AD2d 284, 284 [1990]; People v Connor, 137AD2d 546, 550 [1988]), here, the testimony elicited from the witness oncross-examination was intertwined with that elicited by the defense on direct examination(see People v Guy, 93AD3d 877, 879 [2012]). Moreover, neither the prosecutor nor the witnessspecifically indicated that the defendant had been incarcerated pending or during trial.Both the prosecutor and the witness used the term "facility." In light of the fact that thejury was already aware, from the testimony of prior witnesses, that the defendant hadbeen arrested and handcuffed at the scene of the crime, and transported to a police stationand placed in a holding cell, the testimony of the correction officer did not suggest thatthe defendant remained incarcerated pending trial. Given these circumstances, the trialcourt was not required, sua sponte, to issue a curative instruction (see generallyPeople v Guy, 93 AD3d at 879).
However, a new trial is necessary because the prosecutor exercised one of herperemptory challenges in a discriminatory manner with respect to a Hispanic maleprospective juror (see Batson v Kentucky, 476 US 79 [1986]; People v Bell, 126 AD3d718, 718 [2015]). Under both state and federal law, the use of peremptorychallenges in a racially discriminatory manner is prohibited (see Batson vKentucky, 476 US at 85; People v Kern, 75 NY2d 638, 649 [1990]). Trialcourts must follow a three-step protocol to determine whether a party has used itsperemptory challenges in a racially discriminatory manner. First, the moving partycontesting the peremptory challenges must allege [*2]sufficient facts to make a prima facie showing that theprospective jurors were challenged because of race (see People v Smocum, 99NY2d 418, 421 [2003]). Where the moving party makes such a prima facie showing, theburden shifts to the nonmoving party to offer a race-neutral reason for each of thedisputed peremptory challenges (see People v Allen, 86 NY2d 101, 109 [1995]).If such reasons are offered, the burden shifts back to the moving party to demonstratethat the reasons, although facially neutral, are pretextual (see People v Hecker, 15 NY3d625, 634-635 [2010]). The third step requires the trial court to make an ultimatedetermination as to whether the proffered reasons are pretextual (see Purkett vElem, 514 US 765, 768 [1995]; People v Hecker, 15 NY3d at 634-635; People v Luciano, 10 NY3d499, 503 [2008]; People v Allen, 86 NY2d at 104).
In the present case, the prosecutor used peremptory challenges to strike twoprospective jurors, a Hispanic male and a Hispanic female. Defense counsel raised aBatson challenge, contending that the prosecutor was using peremptorychallenges to strike prospective jurors of Hispanic origin because the defendant wasHispanic.
With respect to the Hispanic male prospective juror, the prosecutor explained that herchallenge was based on his purported difficulty in understanding and responding to thetrial court's questions regarding his ability to follow the law. Defense counsel argued thatthe prosecutor's explanation was pretextual, because the subject prospective jurorresponded that he could understand the law and follow it. Further, defense counselargued that the prosecutor did not attempt to remove this prospective juror for cause orfollow up on the trial court's questioning of him.
As to the Hispanic female prospective juror, the prosecutor stated that theprospective juror provided very short answers in response to her questions, that she wasnot able to build a rapport with the prospective juror, and that the prospective juror wasnot communicative. Defense counsel contended that the prosecutor should havequestioned the Hispanic female prospective juror further if the prosecutor believed thather answers were insufficient.
The trial court credited the prosecutor's explanation as to the Hispanic maleprospective juror, finding that he had been very hesitant and expressed difficulty withcertain legal concepts in his responses. Without addressing whether the faciallyrace-neutral explanation offered by the prosecutor for challenging the Hispanic femaleprospective juror was pretextual, the trial court denied the defendant's Batsonapplication.
Contrary to the trial court's determination, the facially race-neutral reason profferedby the prosecutor for exercising a peremptory challenge with respect to the Hispanicmale prospective juror was pretextual. Although the prosecutor argued that thisprospective juror had a difficult time understanding the trial court's questions during voirdire, this claim is not borne out by the record. Rather, the record shows that theprospective juror was repeatedly asked the same question regarding his willingness tofollow the law and assured the trial court more than once that he would follow the law asit was provided. While this prospective juror asked for one of the court's questions to berepeated, and expressed that he did not understand compound questions when they wereasked of him, never during the questioning by the trial court did he give a conflictinganswer or state that he would not or could not follow the law. Indeed, any appearance ofa lack of understanding on the part of this prospective juror is attributable to confusioncaused by the manner in which the trial court intervened during the prosecutor'squestioning of the juror: while a question was pending before the juror, the court askedcompound questions of him.
Moreover, the prosecutor's failure to pursue questioning of this prospective juror,whom she purportedly believed could not follow the law, despite repeated assurances bythe prospective juror to the contrary, also renders the basis for the challenge pretextual(see People v Bell, 126 AD3d at 719).
We further note that the trial court did not perform the third step of theBatson protocol with respect to the Hispanic female prospective juror. The trialcourt failed to make a finding as to whether the explanation offered by prosecutor,although facially race-neutral, was pretextual and not the genuine reason for thechallenge with respect to this prospective juror (see [*3]People v Smocum, 99 NY2d at 422; People vPayne, 88 NY2d 172, 183 [1996]). However, because the race-based challenge to theHispanic male prospective juror requires reversal and a new trial, we need not remit thematter to the trial court to hear and report on the third step of the Batson processwith respect to the Hispanic female prospective juror.
In view of our determination, we need not reach the defendant's remainingcontention. Skelos, J.P., Balkin, Austin and Barros, JJ., concur.