202 A.D.2d 12, People v. Dixon

Citation:202 A.D.2d 12, 615 N.Y.S.2d 904
Party Name:People v. Dixon
Case Date:August 15, 1994
Court:New York Supreme Court Appelate Division, Second Department

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202 A.D.2d 12

615 N.Y.S.2d 904

The PEOPLE, etc., Respondent,


Kevin DIXON, Appellant.

Supreme Court of New York, Second Department

August 15, 1994.

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[615 N.Y.S.2d 905] 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.

[615 N.Y.S.2d 906] 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

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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...

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