People v. Dixon

Decision Date15 August 1994
PartiesThe PEOPLE, etc., Respondent, v. Kevin DIXON, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Steven M. Statsinger and Richard Joselson, of counsel), for appellant.

Appellant pro se.

Charles J. Hynes, Dist. Atty., Brooklyn City (Roseann B. MacKechnie, Jay M. Cohen, and Eugene Lopez, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, ROSENBLATT and MILLER, JJ.

BRACKEN, Presiding Justice.

In a criminal case, neither the prosecutor nor the attorney for the defendant may, through the exercise of peremptory challenges, seek to exclude the members of a "cognizable group" from the jury which is ultimately to be selected and which is ultimately to decide the defendant's fate (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Georgia v. McCollum, 505 U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235). Women comprise a cognizable group for purposes of applying the Batson rule (see, J.E.B. v. Alabama ex rel. T.B., 511 U.S. ----, 114 S.Ct. 1419, 128 L.Ed.2d 89; see also, People v. Irizarry, 165A.D.2d 715, 560 N.Y.S.2d 279; People v. Blunt, 162 A.D.2d 86, 561 N.Y.S.2d 90; People v. Campanella, 176 A.D.2d 813, 575 N.Y.S.2d 137). Once a prima facie case is made that an attorney is attempting to exclude a cognizable group, the attorney will be called upon to articulate nondiscriminatory explanations for the peremptory challenges which he or she has exercised, and the court must then decide whether such explanations are sincere or merely pretextual (see, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395, aff'g 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621; People v. Jenkins, 75 N.Y.2d 550, 556, 555 N.Y.S.2d 10, 554 N.E.2d 47; People v. Simmons, 79 N.Y.2d 1013, 584 N.Y.S.2d 423, 594 N.E.2d 917; People v. Brooks, 79 N.Y.2d 1043, 584 N.Y.S.2d 1010, 596 N.E.2d 408, cert. denied sub nom. Brooks v. New York, --- U.S. ----, 113 S.Ct. 282, 121 L.Ed.2d 208). The central question before us on this appeal is whether, given the prevalence of crime in our cities, the fact that a prospective juror is himself or herself the victim of a crime should ordinarily be regarded as a legitimate, rather than as a pretextual, basis for the defendant's exercise of his or her peremptory challenges after a prima facie showing of discrimination has been made. The defendant argues that the trial court's erroneous application of the Batson doctrine deprived him of his statutory right to exercise peremptory challenges. For the following reasons, we agree.

In this case, the attorney for the defendant exercised a total of 10 peremptory challenges against prospective jurors who were women. Six of these challenges occurred during the first round of jury selection and four occurred during the second. Having determined the existence of a discriminatory pattern, the trial court called upon the defendant's attorney to provide "gender-neutral" explanations of these challenges. The following are in summary fashion the explanations which the defendant's attorney then provided.

The defense counsel noted, first, that prospective juror number one (round one) had stated that her brother had been "mugged". The prosecutor responded by pointing out that this mugging incident had occurred 10 years ago.

Next, the defense counsel stated that prospective juror number two (round one) had said that her son was employed in the Department of Correction and that she herself had been the victim of a burglary. The prosecutor responded by arguing, inter alia, that the employment of the prospective juror's son was irrelevant. The prosecutor also argued that this prospective juror, as well as prospective juror number one, had both indicated that they would be fair.

Although juror number three (round one) had advised that she had been the victim of a burglary, the defense counsel did not explain his peremptory challenge on this basis. The defense counsel stated that he did not like this juror's answers to various questions in general.

Proceeding to prospective juror number five (round one), the defense counsel asserted that, to him, this female prospective juror lacked the strength to "stand her ground". As a matter of fact, this prospective juror also claimed that her brother had been mugged; however, in offering his "gender-neutral" explanation, the defendant's attorney failed to note this fact. The prosecutor argued that the attorney's explanation for his challenge was "not sufficient".

The defense counsel next stated that prospective juror number 13 (round one) had been a token booth clerk who might be biased against the defendant, who allegedly committed this crime in the subway. The prosecutor argued that this prospective juror's former employment was irrelevant.

The defendant's attorney next stated that prospective juror number fourteen (round one) had had prior criminal jury experience. The prosecutor argued that the real reason for defense counsel's exercise of a peremptory challenge was that this prospective juror was of the same age and gender as the complaining witness.

With respect to round two of the jury selection process, the defense counsel asserted that the peremptory challenge exercised with respect to prospective juror number three was prompted by the fact that this juror's husband had been mugged. This prospective juror's nephew was employed in the Department of Correction and the prospective juror had stated that she used to discuss his work with him.

The defendant's attorney next averred that prospective juror number four (round two) had said that she had been the victim of a robbery and an assault. This prospective juror also claimed to have a brother and several friends who were employed in the Police Department.

The defendant's attorney next pointed out that prospective juror number seven (round two) had expressed a belief that a person would not have been arrested if he had not committed a crime. Counsel also pointed out that he had unsuccessfully attempted to exercise a challenge "for cause" with respect to this juror.

Finally, the defense counsel noted that the sister of juror number eight (round two) had been robbed at gunpoint. Counsel also claimed that the trial court had not permitted him to conduct a "proper voir dire" as to this juror and that he therefore "had no sense of whether or not she would be a fair and impartial juror".

It should also be noted that defense counsel was accused of exercising his peremptory challenges so as to remove whites from the panel. For example, counsel explained his challenge of one white male by noting that this prospective juror had stated that his son had been pistol-whipped and that his mother had been the victim of a robbery and had also been pistol-whipped.

The trial court seated juror number one, juror number three, juror number five, and juror number fourteen in round one and juror number four and juror number eight in round two. Thus, the jury ultimately selected included one robbery victim, two jurors whose brother or sister had been robbery victims, and one burglary victim. All of these jurors had been challenged peremptorily by the defendant's attorney. The defendant was convicted at the conclusion of the trial. This appeal followed.

As a matter of both Federal and State constitutional law, a defendant's attorney may not exercise peremptory challenges in a purposefully discriminatory way (see, U.S. Const. 14th Amend.; N.Y. Const. Art. I § 11; Georgia v. McCollum, 505 U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33, supra; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235; see also, People v. Bolling, 79 N.Y.2d 317, 582 N.Y.S.2d 950, 591 N.E.2d 1136; People v. Mondello, 191 A.D.2d 462, 594 N.Y.S.2d 287). If Batson does not apply, a defendant's right to exercise peremptory challenges remains as unlimited as it was under the earlier case which Batson (supra) overruled (see, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; cf., People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739).

"The right of peremptory challenge given to an accused person is a substantial right * * * [i]t is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent."

"Neither the court nor the parties can select a jury except in the way pointed out by the statute" (People v. McQuade, 110 N.Y. 284, 293-294, 306, 18 N.E. 156; see also, People v. Williams, 26 N.Y.2d 62, 308 N.Y.S.2d 373, 256 N.E.2d 532).

As a matter of state statutory law (CPL 270.25[2], the application of the Batson doctrine to the defendant must not extend any further than required under the Equal Protection Clauses of the State and Federal Constitutions (see, U.S. Const. 14th Amend., supra; N.Y. Const. Art. I, § 11, supra; Georgia v. McCollum, 505 U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33, supra; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 supra ). To extend the Batson doctrine further than necessary, when the party accused of committing a Batson violation is the defendant's own attorney, would be to "destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury they consider fair" (Georgia v. McCollum, 505 U.S. at ----, 112 S.Ct. at 2365 [Scalia, J., dissenting], supra ). Thus, unless application of the Batson doctrine in this case required the trial court to seat the five jurors noted above, despite the defendant's objection, the judgment appealed from must be reversed.

The deprivation of the defendant's right to exercise five peremptory challenges in this case can be justified under the Batson doctrine only if (1) there was in fact a pattern of purposeful discrimination against prospective jurors who were women, and (2) the "gender-neutra...

To continue reading

Request your trial
26 cases
  • Reyes v. Greiner
    • United States
    • U.S. District Court — Eastern District of New York
    • September 15, 2004
    ...366 (1st Dep't 1994) (remand); People v. Williams, 210 A.D.2d 361, 620 N.Y.S.2d 85 (2d Dep't 1994) (new trial); People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904 (2d Dep't 1994) (reverse-Batson) (new trial); People v. Bennett, 206 A.D.2d 382, 614 N.Y.S.2d 430 (2d Dep't 1994) (new trial); Peo......
  • People v. Brown
    • United States
    • New York Supreme Court — Appellate Division
    • June 10, 2015
    ...600, 602 N.Y.S.2d 424 [citation omitted]; see People v. Hernandez, 75 N.Y.2d at 351, 553 N.Y.S.2d 85, 552 N.E.2d 621 ; People v. Dixon, 202 A.D.2d 12, 17, 615 N.Y.S.2d 904 ). Here, the reason proffered by defense counsel for exercising the peremptory challenge against the subject prospectiv......
  • People v. Richie
    • United States
    • New York Supreme Court — Appellate Division
    • December 18, 1995
    ...623 N.Y.S.2d 922; People v. Jupiter, 210 A.D.2d 431, 620 N.Y.S.2d 426; People v. Stiff, 206 A.D.2d 235, 620 N.Y.S.2d 87; People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904; People v. Bailey, 200 A.D.2d 677, 606 N.Y.S.2d 757; People v. Mondello, 191 A.D.2d 462, 594 N.Y.S.2d 287). Obviously, in......
  • People v. Morris
    • United States
    • New York Supreme Court — Appellate Division
    • April 29, 2016
    ...fact that her aunt had been murdered and that she herself had previous encounters with the criminal justice system (see People v. Dixon, 202 A.D.2d 12, 17–18, 615 N.Y.S.2d 904 ). We reject defendant's contention that his Miranda waiver was involuntary. Although the evidence establishes that......
  • Request a trial to view additional results
9 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...727 N.Y.S.2d 146 (2d Dept. 2001), § 5:160 People v. Dixon, 199 A.D.2d 332, 604 N.Y.S.2d 604 (2d Dept. 1993), § 7:110 People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904 (2d Dept. 1994), § 2:270 People v. Doe, 158 Misc.2d 863, 602 N.Y.S.2d 507 (Crim. Ct., New York County, 1993), § 14:50 People ......
  • Jury selection
    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...she had not been treated fairly by the police and initially said she did not think she could be fair and impartial. People v. Dixon , 202 A.D.2d 12, 615 N.Y.S.2d 904 (2d Dept. 1994). A gender-neutral explanation must be reasonably definite and must be one where gender does not play a role. ......
  • Jury selection
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...she had not been treated fairly by the police and initially said she did not think she could be fair and impartial. People v. Dixon , 202 A.D.2d 12, 615 N.Y.S.2d 904 (2d Dept. 1994). A gender-neutral explanation must be reasonably deinite, and must be one where gender does not play a role. ......
  • Jury selection
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...she had not been treated fairly by the police and initially said she did not think she could be fair and impartial. People v. Dixon , 202 A.D.2d 12, 615 N.Y.S.2d 904 (2d Dept. 1994). A gender-neutral explanation must be reasonably deinite, and must be one where gender does not play a role. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT