| People v Pescara |
| 2018 NY Slip Op 04927 [162 AD3d 1772] |
| June 29, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Scott L. Pescara, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), renderedOctober 21, 2011. The judgment convicted defendant, upon a jury verdict, of attemptedaggravated assault upon a police officer or a peace officer, assault in the second degree andreckless endangerment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts one, three and five of the indictment.
Memorandum: On appeal from a judgment convicting him following a jury trial of attemptedaggravated assault upon a police officer or a peace officer (Penal Law§§ 110.00, 120.11), assault in the second degree (§ 120.05 [2]),and reckless endangerment in the first degree (§ 120.25), defendant contends, interalia, that the prosecutor's peremptory challenges to multiple African-American prospective jurorsconstituted Batson violations, and that County Court, in denying defendant's Batsonclaims, failed to follow the proper procedures. We agree with defendant, and we thereforereverse the judgment and grant him a new trial on counts one, three and five of theindictment.
In determining whether a party has used peremptory challenges to exclude prospective jurorsbased on race, trial courts must follow the now-familiar three-step process set forth in Batsonv Kentucky (476 US 79, 96-98 [1986]). "At step one, the movant must make a prima facieshowing that the peremptory strike was used to discriminate; at step two, if that showing is made,the burden shifts to the opposing party to articulate a non-discriminatory reason for striking thejuror; and finally, at step three, the trial court must determine, based on the arguments presentedby the parties, whether the proffered reason for the peremptory strike was pretextual and whetherthe movant has shown purposeful discrimination" (People v Bridgeforth, 28 NY3d 567, 571 [2016]; see People v Hecker, 15 NY3d625, 634-635 [2010]).
Here, the prosecutor exercised peremptory challenges to six African-American prospectivejurors. Defendant raised a Batson claim each time, and the prosecutor, in response,offered facially race-neutral explanations for five of the six challenges. With respect to thechallenge for which no race-neutral explanation was proffered, the prosecutor asserted that theprospective juror in question, who had been assigned number 10, was not African-American asdefense counsel had claimed. Although the court stated that it did not know whether prospectivejuror number 10 was African-American, it nevertheless denied the Batson claim withoutexplanation.
Shortly thereafter, the court, at defense counsel's request, questioned prospective jurornumber 10 at the bench with respect to his race. Prospective juror number 10 stated that he was"African-American black, Caribbean black," explaining that both of his parents were ofCaribbean descent and that he considered himself "black culturally." Defense counsel thereafterreferred to his prior Batson claim and stated that it was now clear that prospective jurornumber 10 was African-American. The court disagreed, stating that prospective juror number 10was "Carribean," not African-American. After stating that prospective juror number 10's skincolor was black, defense counsel noted that there was no race-neutral reason offered by theprosecutor for striking him. The court responded, "Actually, I thought there [was], but the recordwill stand."
The record establishes that the prosecutor never offered a race-neutral reason for theperemptory challenge of prospective juror number 10. Although the court evidently was underthe misapprehension that a race-neutral reason had been offered, it did not determine whethersuch reason was pretextual, as required by Batson and its progeny.
On appeal, the People do not specifically dispute that prospective juror number 10 isAfrican-American, and we note in any event that "a Batson challenge may be based oncolor" (Bridgeforth, 28 NY3d at 572). Thus, even assuming, arguendo, that prospectivejuror number 10 was not African-American, we conclude that he was nevertheless entitled toprotection under Batson based on the color of his skin. According to the People, however,the court properly denied defendant's Batson claim because defendant failed to meet hisinitial burden of establishing a prima facie case of discrimination under People vChildress (81 NY2d 263, 267 [1993]). The People raise that contention for the first time onappeal, and it therefore is unpreserved for our review (see CPL 470.05 [2]). Regardless ofthe lack of preservation, we note that the court did not deny the Batson claim on theground that defendant failed to meet his initial burden of proof, and we are thus precluded fromaffirming the judgment on that ground (see People v Concepcion, 17 NY3d 192, 197-198 [2011];People v LaFontaine, 92 NY2d 470, 474 [1998]).
In any event, we conclude that defendant did in fact meet his initial burden, thereby shiftingthe burden to the People to offer a race-neutral explanation for the peremptory challenge. "[T]hefirst-step burden in a Batson challenge is not intended to be onerous" and is met when" 'the totality of the relevant facts gives rise to an inference of discriminatorypurpose' " (Hecker, 15 NY3d at 651, quoting Batson, 476 US at 94).Here, at the time that defense counsel requested that prospective juror number 10 be questionedat the bench about his race, the prosecutor had challenged all four African-American prospectivejurors who thus far had been subject to voir dire. Moreover, the prosecutor did not ask anysubstantive questions of prospective juror number 10 during voir dire, "and County Court'sgeneral questioning of the panel raised no issues that would distinguish [him] from the otherprospective jurors," thereby raising an inference of discrimination (People v Davis, 153 AD3d 1631,1632 [4th Dept 2017]). The burden of proof thus shifted to the People to offer a race-neutralexplanation for striking the prospective juror, and the People failed to do so.
With respect to another of defendant's Batson claims, arising from the prosecutor'ssubsequent use of a peremptory challenge to prospective juror number 13, the court failed tofollow the three-step procedure set forth in Batson. Prospective juror number 13 is afemale African-American who, at the time of trial, was attending nursing school. When theprosecutor struck prospective juror number 13, defense counsel raised a Batson claim,asserting that the prospective juror had never been involved in the criminal justice system in anyway and that she unequivocally stated that she could be fair and impartial. In response, theprosecutor explained that he struck prospective juror number 13 because she was in nursingschool and stated on her juror questionnaire that she was going to school because she wanted tohelp people, which in the prosecutor's view indicated that she may be sympathetic todefendant.
Instead of determining whether the race-neutral explanation offered by the prosecutor waspretextual, the court engaged defense counsel in an extended colloquy during which the courtasked how defendant, as a Caucasian, could assert a Batson claim with respect to anAfrican-American prospective juror. Defense counsel answered, correctly, that a defendant neednot be the same race as the stricken prospective juror (see Powers v Ohio, 499 US 400,402 [1991]). The court then noted that defense counsel himself previously struck anAfrican-American prospective juror, which is not a proper basis for denying a Batsonclaim, and the prosecutor added that there were already two African-Americans seated on thejury. Of course, the fact that African-Americans were seated on the jury does not mean that aparty is free to discriminate against other African-American prospective jurors (see People vJenkins, 75 NY2d 550, 557 [1990]). Although defense counsel contested the reason offeredby the prosecutor for striking prospective juror number 13, the court stated that it did not see "itas a Batson issue for all the reasons we talked about." As in People v Morgan (75 AD3d 1050,1053 [4th Dept 2010], lv denied 15 NY3d 894 [2010]), where we granted a new trial onBatson grounds, "the court failed to make any determination on the record withrespect to the issue of pretext."
The People nevertheless contend that, because the court ultimately denied defendant'sBatson claim, we may conclude that it implicitly determined that the race-neutral reasonoffered by the prosecutor for striking prospective juror number 13 was not pretextual. Althoughthere are cases in which we have held that the trial court, by ultimately denying a Batsonclaim, implicitly determined that the race-neutral explanation offered by the People was notpretextual (see e.g. People v Jiles,158 AD3d 75, 78 [4th Dept 2017]; People v Ramos, 124 AD3d 1286, 1287 [4th Dept 2015], lvdenied 25 NY3d 1076 [2015], denied reconsideration 26 NY3d 933 [2015]), thecourt here stated that it was denying the Batson claim with respect to prospective jurornumber 13 for "all the reasons we talked about," none of which is a proper basis for the ruling.We therefore cannot assume that the court implicitly determined the issue of pretext in thePeople's favor, particularly in view of the fact that the court did not make a ruling on that issueon any of the five Batson claims for which the prosecutor offered a race-neutralexplanation for striking African-American prospective jurors.
We therefore conclude that, based on the court's wholesale failure to comply with theBatson protocol with respect to multiple African-American prospective jurors who werethe subject of peremptory challenges by the People, defendant is entitled to a new trial (seeMorgan, 75 AD3d at 1053). We have reviewed defendant's remaining contentions andconclude that they lack merit. Present—Smith, J.P., Carni, Lindley, Curran and Troutman,JJ.