People v. Blunt

• Decision Date: 22 October 1990
• Citation: 162 A.D.2d 86,561 N.Y.S.2d 90
• Parties: The PEOPLE, etc., Respondent, v. Robert BLUNT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 90

561 N.Y.S.2d 90

162 A.D.2d 86

The PEOPLE, etc., Respondent, v. Robert BLUNT, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 22, 1990.

Matthew Muraskin, Hempstead (Kent V. Moston, Stephanie M. Carvlin and Nancy Schindher, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Lisa J. Becker, of counsel), for respondent.

Before KUNZEMAN, J.P., and KOOPER, SULLIVAN and O'BRIEN, JJ.

SULLIVAN, Justice.

On this appeal, we are called upon to decide whether the prosecutor's exercise of peremptory challenges, allegedly based on gender, may have violated the defendant's rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 and People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235. For the reasons that follow, we hold that a prima facie case of improper discrimination has been made.

After the first round of jury selection, the prosecutor exercised six peremptory challenges. Two of those peremptory challenges were exercised against black women, whom the prosecutor had previously unsuccessfully challenged for cause.

The defense counsel called the court's attention to the fact that the prosecutor had exercised his peremptory challenges against the only two prospective black jurors, and the prosecutor responded:

"Your Honor, first of all, I would like the record to reflect that [the two black prosecutive jurors] are two of the six women whom I challenged. While I am not suggesting that I am systematically and categorically excluding women from the jury, I would like the record to reflect that I have looked at the panel in the rear. Quite frankly, based upon my prior experiences with [the defense counsel] and the types of juries that I think he attempts to secure, that I am making a concerted effort to have a balanced jury. And my concern at this point is to insure that there is a balance including sufficient males on this jury".

The defense counsel then broadened his claim of discrimination in the use of peremptory challenges to include gender as well as race. The court found that the prosecutor had racially neutral reasons for peremptorily challenging the two black women, but did not inquire as to the prosecutor's reasons for exercising peremptory challenges against four other white women. When the 12 jurors and two alternates had been selected, the defense counsel pointed out that the prosecutor had exercised 12 peremptory challenges, 11 of them against women. The prosecutor pointed out that the jury consisted of eight men and four women.

On this appeal, the defendant contends, inter alia, that the prosecutor's use of peremptory challenges to secure a gender-balanced jury violated his rights under the Federal and State Constitutions (U.S. Const., 6th and 14th Amends.; N.Y. Const., art. I, §§ 1, 2, 11). While it is well established that the prosecutor's use of peremptory challenges to discriminate based on race violates both the Federal and State constitutions (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, supra; People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, supra ), the question of the use of peremptory challenges to discriminate based on gender is relatively novel (see, People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279).

In Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905, the United States Supreme Court held that the Sixth Amendment right to the "fair possibility" of a representative jury extends only to the selection of the venire and does not extend to the use of peremptory challenges. The Equal Protection Clause of the Fourteenth Amendment, upon which Batson is based, has not been extended to cases other than those involving allegations of racial discrimination in the exercise of peremptory challenges (see, United States v. Hamilton, 4 Cir., 850 F.2d 1038, 1042-1043, cert. denied --- U.S. ----, 110 S.Ct. 1109, 107 L.Ed.2d 1017).

Of great significance is the recent decision of the Court of Appeals in People v. Kern, supra, which held that the use of peremptory challenges by defense attorneys for racially discriminatory purposes violates the Equal Protection Clause of our State Constitution (N.Y. Const., art. 1, § 11) which provides:

"No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state".

Clearly, the right to serve on juries is a privilege of citizenship under N.Y. Constitution, article I, § 1 (People v. Kern, supra, 75 N.Y.2d at 652, 555 N.Y.S.2d 647, 554 N.E.2d 1235). It is also a civil right as set forth in Civil Rights Law § 13, which states:

"No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a * * * petit juror in any court of this state on account of * * * sex".

To paraphrase the language of Judge Alexander in writing for a unanimous Court of Appeals in People v. Kern, supra, a citizen's privilege to be free from gender-based discrimination in the qualification for jury service is hardly a privilege if that individual may nevertheless be kept from service on the petit jury solely because of gender. This privilege of citizenship may not be denied our citizens solely on the basis of their gender.

We also reject the People's contention that the defendant has no standing to assert this claim of gender bias since he is not a member of the excluded class. It should be noted that in Holland v. Illinois, supra, various opinions in dicta indicate that a majority of the Justices are of the view that a defendant need not be a member of the excluded group in order to have standing to assert an Equal Protection argument. Similarly, the defendant has standing under our State Constitution (see, People v. Kern, supra, at 654, n. 3, 555 N.Y.S.2d 647, 554 N.E.2d 1235).

Having determined that the exercise of peremptory challenges based solely on gender violates the Equal Protection Clause of our State Constitution and the Civil Rights Law, we turn now to the question of whether or not the defense established a prima facie case of discrimination. In order to establish such a prima facie case, the defendant must show (1) that the prosecutor...