| People v Grafton |
| 2015 NY Slip Op 07701 [132 AD3d 1065] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1](October 22, 2015)
| The People of the State of New York, Respondent, vMichael Grafton, Also Known as Murda, Appellant. |
Mitch Kessler, Cohoes, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered May 17, 2013, upon a verdict convicting defendant of the crimesof attempted assault in the first degree and criminal possession of a weapon in the seconddegree (two counts).
Defendant and Rome Halliburton (also known as Calvin Jones) allegedly exchangedmultiple gun shots on a street in the City of Schenectady, Schenectady County.Defendant and Halliburton's brother, Winston Halliburton, received nonfatal gunshotwounds during the incident. Defendant was charged in a multi-count indictment and ajury trial ensued. The jury was unable to reach a verdict on one count and acquitteddefendant on two other counts, but he was found guilty of one count of attempted assaultin the first degree and two counts of criminal possession of a weapon in the seconddegree. He was sentenced to concurrent prison terms of 15 years, together withpostrelease supervision, and now appeals.
Defendant, who is black, contends that the People violated his equal protection rightsunder Batson v Kentucky (476 US 79 [1986]) by using peremptory challenges toremove the two nonwhite members of the jury panel, resulting in an all whitejury.[FN1]
[*2]A Batson challenge implicates a three-step processin which, "[a]t step one, 'the moving party bears the burden of establishing a prima faciecase of discrimination in the exercise of peremptory challenges' " (People v Hecker, 15 NY3d625, 634 [2010], cert denied 563 US &mdash, 131 S Ct 2117 [2011],quoting People v Smocum, 99 NY2d 418, 420 [2003]). "Once a prima facieshowing of discrimination is made, the nonmovant must come forward with arace-neutral explanation for each challenged peremptory—step two" (People vSmocum, 99 NY2d at 422). The explanation at step two is "not required to be'persuasive, or even plausible'; as long as the reasons for the challenges are 'faciallyneutral,' even 'ill-founded' reasons will suffice" (People v Lee, 80 AD3d 877, 879 [2011], lv denied16 NY3d 833 [2011], quoting People v Payne, 88 NY2d 172, 183 [1996]), anddetermining whether the step two explanation is adequate is "a question of law"(People v Allen, 86 NY2d 101, 109 [1995]). If the nonmoving party provides anadequate explanation, "the burden then shifts back, at step three, to the moving party topersuade the court that reasons are merely a pretext for intentional discrimination"(People v Hecker, 15 NY3d at 656 [internal quotation marks, brackets andcitation omitted]). This step is a factual issue in which the trial court has broad discretionin determining credibility (see id.; People v James, 99 NY2d 264, 271[2002]; People v Knowles,79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]; see alsoMiller-El v Cockrell, 537 US 322, 339 [2003]).
Initially, we note that the Batson application, made before the end of juryselection, was timely (seePeople v Thomas, 92 AD3d 1084, 1085 [2012]) and any issue regarding thesufficiency of defendant's step one showing is now moot since the People offered steptwo race neutral reasons for the challenged peremptory challenges (see People vJames, 99 NY2d at 270). The reasons offered by the People included, as to juror No.19, that the father of her children had been prosecuted by the Schenectady CountyDistrict Attorney's office for robbery and "presumably" was in prison. Regarding jurorNo. 127, the People explained in some detail that there were jurors after her that theypreferred to use to fill the twelfth and final seat. Although these reasons were faciallyrace-neutral satisfying the People's step two burden, defendant points out that thePeople's statement regarding juror No. 19 had significant factual errors embellishing onher actual comment,[FN2] and also that the People did notchallenge a white juror whose sister had "been in and out of trouble for years, felonies, introuble with the law." As such, there were important factual issues implicating credibilitythat needed to be resolved at step three. However, as conceded by the People in theirbrief on appeal, County Court ruled on the Batson application at the conclusionof step two.
The improper compressing of a Batson inquiry does not necessarily mandatereversal, as the movant must preserve the issue as to whether a meaningful step threeinquiry occurred (see People v Smocum, 99 NY2d at 423; People vColeman, 5 AD3d 1074, 1075 [2004], lv denied 3 NY3d 638 [2004]).Indeed, whatever procedural problems may exist in a Batson inquiry, theoverriding concern is that a properly preserved question regarding the ultimate issue ofdiscrimination is meaningfully addressed (see People v Smocum, 99 NY2d at423). Here, [*3]defendant sufficiently preserved the issueand the ultimate issue was not adequately addressed. After the People offered their raceneutral reasons as to the second relevant juror, defendant began to respond and urged thatthe record was not complete. County Court stated that the record was complete andsummarily denied defendant's Batson challenge. "[T]he court did not appear togive any consideration to pretext, nor was the basis of its ruling reflected in the record"(People v Tucker, 256 AD2d 1019, 1020 [1998]).
In summary, relevant circumstances here include: the compressing of theBatson inquiry; the People's acknowledgment that the Batson ruling wasmade prematurely after step two; defendant's preservation of the issue as to the lack of astep three factual determination regarding pretext; and the existence of factual issues atstep three as exemplified by, among other things, the incorrect characterization of jurorNo. 19's statement and the lack of explanation regarding accepting a white juror withsimilar circumstances as those found objectionable in a black juror. Additionally, theretirement of the trial judge is a factor that makes remittal to properly address theunanswered factual and credibility issues implicated in step three difficult (see Peoplev Scott, 70 NY2d 420, 426 [1987]). Under all the circumstances, we are persuadedthat reversal is required.
Although the remaining issues are academic, since there must be a new trial, webriefly note our concern about the People's extensive use of defendant's street name"Murda," as well as the introduction at trial of evidence inconsistent with the pretrialVentimiglia/Molineux ruling.
Garry, Lynch and Devine, JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the County Court of Schenectady County for a new trial.
Footnote 1:Other nonwhite jurorswere in the jury pool, but they were removed for cause. Of the two nonwhite jurorsremoved by the People's peremptory challenges, one juror (No. 19) was black, whereasthe other (No. 127) was described as not Caucasian, not black and ostensibly was AsianAmerican.
Footnote 2:The juror did notstate that the prosecution had occurred in Schenectady County. She also did not relateany disposition of the charge nor did she indicate that the man was the father of both ofher children. She simply stated that three years earlier her "daughter's father was chargedwith robbery in the second degree," and added that he was treated "fair[ly]."