People v. Gary M.

• Decision Date: 10 March 1988
• Court: New York Supreme Court

Page 986

526 N.Y.S.2d 986

138 Misc.2d 1081

PEOPLE of the State of New York v. GARY M. ¹ Supreme Court, Kings County ACA, Part 9.

March 10, 1988.

Elizabeth Holtzman, Dist. Atty., Adrienne Rabinowitz, Brooklyn Dist. Atty's. Office, for the People.

Mitchell Schuman, Brooklyn Legal Aid Soc., for defendant.

KRAMER, Justice.

Can a minority defendant use his peremptory challenges to discriminate against majority jurors? ² Put another way, does Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 apply to defendants? Other important issues necessary for determination are: (1) whether the Government is entitled to a trial by jury composed of a fair cross-section of the community; (2) whether defendant's exercise of peremptory Defendant has been indicted for the crime of criminal possession of a weapon in the third degree (2 counts). The central trial issue is the credibility of two white police officers who say they saw this defendant in possession of two guns. Defendant and a civilian witness claim that the guns were not in Gary M.'s possession.

challenges constitutes "state action"; (3) whether white potential jurors constitute "cognizable" groups; and (4) whether the People have standing to object to discrimination against a juror.

HISTORY OF PEREMPTORY CHALLENGES ³

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 the court held that the equal protection clause of the Fourteenth Amendment does not require a prosecutor to explain the exercise of his peremptory challenges even when it is suspected that the use is racially motivated. Swain did not address the Sixth Amendment right to a jury trial, because the Supreme Court had not yet decided that it applied to the states.

Three years later in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 the Supreme Court ruled that the Sixth Amendment applies to the states. Thereafter, the Supreme Court held that the Sixth Amendment right to a jury trial is violated when a state excludes from the jury venire persons on the basis of their race or sex ( Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579). However, the court has never applied the "fair cross-section" requirement to a petit jury.

In contrast, some state courts have held that the use of peremptory challenges to strike petit jurors on the basis of their race was violative of their State Constitution guarantees of a fair cross-section ( People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. den. 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110; State v. Crespin, 94 N.M. 486, 612 P.2d 716 [App.]; State v. Neil, 457 So.2d 481 [Fla.]; State v. Gilmore, 103 N.J. 508, 511 A.2d 1150).

In People v. Kagan, 101 Misc.2d 274, 420 N.Y.S.2d 987 the court held that it was a violation of New York State Constitution, Section 1, Article 1 when the prosecutor exercised his peremptory challenges to exclude persons of the Jewish faith. Thereafter, in People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739, supra, the Appellate Division, Second Department also ruled it a violation of the New York State Constitution when the prosecution uses peremptory challenges to exclude black potential jurors.

However, in People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915, cert. den. 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 the Court of Appeals, in a 4 to 3 decision, ruled to the contrary. The court held that neither Article 1, section 1 nor Article 1, section 11 of the New York Constitution permits a court to interfere with the use of peremptory challenges. The court held that these clauses afforded no greater protection than do the parallel federal constitutional clauses. The court stated that the Sixth Amendment right to fair cross-section did not apply to petit jurors (p. 550, 457 N.Y.S.2d 441, 443 N.E.2d 915) and (citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, supra ) that the equal protection clause of the United States Constitution was not violated.

McCray applied to the Federal District Court for his release which was granted, holding that the Sixth Amendment required scrutiny of discriminatory prosecutorial peremptory challenges ( McCray v. Abrams, 576 F.Supp. 1244). The United States Second Circuit Court of Appeals remanded the McCray case for a hearing but held that the Sixth Amendment prohibited discriminatory use of peremptory challenges. ⁴

Approximately one and-a-half years later the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 supra. The court held that inquiry into the prosecutor's use of peremptory challenges is mandated by the Equal Protection Clause of the Fourteenth Amendment whenever a defendant shows prima facially that the prosecutor discriminated.

Six days after Batson, the Supreme Court decided Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137. The court ruled that the defendant's Sixth Amendment rights were not violated by upholding a challenge for cause to jurors who were opposed to the death penalty. The court said that the Sixth Amendment does not apply to petit jurors and that jurors who were opposed to the death penalty did not constitute a "distinctive group" for the purposes of the fair cross-section requirement.

TRIAL BY JURY

Article 1, section 2 of the New York State Constitution reads as follows:

"Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever."

The language does not specify that the right to trial by jury is exclusively that of an accused. This Article does not use the phrase "accused shall enjoy" or as other provisions of the New York State Constitution "no person shall" or the "right of the people".

In Cancemi v. The People, 18 N.Y. 128 the Court of Appeals held that a defendant and the prosecutor could not consent to a waiver of the right to trial by jury, because "society" has a right to that particular mode of trial. Similarly, the United States Supreme Court had said in Singer v. U.S., 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630:

"The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result."

The government and the defendant have the right to trial by a jury (U.S. v. Radford, 7th Cir., 452 F.2d 332, 335--"The Government's right to a jury trial"; see, also United States v. Martin, 6th Cir., 704 F.2d 267, 271--"Public Interest in Jury Trials" or "Societal Interest").

The right to a jury trial includes the right to a fair cross-section of the community ( Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181). Both society and defendant have a right that any trial conducted be fair and impartial ( People v. Guzman, 125 Misc.2d 457, 467, 478 N.Y.S.2d 455). As such, the jury selected must be from a fair cross-section of the community.

The issue remains, however, whether the fair cross-section requirement applies to petit jurors. The post- Lockhart (476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, supra ) courts are divided.

Some courts feel that Lockhart precludes application of the fair cross-section requirement to the petit jurors, and therefore to peremptory challenges of petit jurors ( People v. Treece, 159 Ill.App.3d 397, 111 Ill.Dec. 66, 511 N.E.2d 1361, lv. denied 117 Ill.2d 552, 115 Ill.Dec. 408, 517 N.E.2d 1094; Teague v. Lane, 7th Cir., 820 F.2d 832; Lindsey v. Smith, 11th Cir., 820 F.2d 1137, reh. denied, 11th Cir., 828 F.2d 775, petition for cert. filed 10-3-87; United States v. Forbes, 5th Cir., 816 F.2d 1006, 1011, fn. 8; U.S. v. Thompson, 9th Cir., 827 F.2d 1254, 1257, fn. 2, supra ).

Other courts disagree. They hold that the Sixth Amendment includes a right to a "possibility" of obtaining a fair cross-section of the community at the petit jury Support for the "possibility" of a fair cross-section requirement can be found in the rationale of the Supreme Court in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 and Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. In Williams the court found a jury of six sufficient to satisfy the federal constitution, because it provided for "a fair possibility for obtaining a representative cross-section of the community" (p. 100, 90 S.Ct. p. 1906) (emphasis supplied). In contrast, in Ballew, supra, the court held that a five person jury was insufficient and unconstitutional because it did not provide sufficient numbers to insure a fair cross-section of the community (see, Judge White's concurring opn., 435 U.S. 223, 245, 98 S.Ct. 1029, 1042).

                level.  While the Sixth Amendment does not require the petit jury to mirror the community, it does require that the litigants at least have the possibility of such.  Thus, when peremptory challenges are racially motivated, the "possibility" of a fair cross-section of the community is eliminated ( Fields v. People, 732 P.2d 1145 [Colo.];  Booker v. Jabe, 6th Cir., 775 F.2d 762, vacated sub nom.   Michigan v. Booker, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705, upon remand sub nom.  Booker v. Jabe, 6th Cir., 801 F.2d 871, cert. den. sub nom.  Michigan v. Booker, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860;  Roman v. Abrams, 2nd Cir., 822 F.2d 214, supra; U.S. ex rel. Yates v. Hardiman, 656 F.Supp. 1006, revd. without published opn. 7th Cir., 830 F.2d 195, petition for cert. filed 11-9-87;   State v. Smith, 737 S.W.2d 731 [Mo.App.], pet. for cert. filed 1-15-88 see dissenting opinion Judge Manford, pp. 735-743)
                

In McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 supra...