People v. Hernandez

• Citation: 553 N.Y.S.2d 85,552 N.E.2d 621,75 N.Y.2d 350
• Parties: , 552 N.E.2d 621 The PEOPLE of the State of New York, Respondent, v. Dionisio HERNANDEZ, Appellant.
• Decision Date: 22 February 1990
• Court: New York Court of Appeals

Page 85

553 N.Y.S.2d 85

75 N.Y.2d 350, 552 N.E.2d 621

The PEOPLE of the State of New York, Respondent, v. Dionisio HERNANDEZ, Appellant.

Court of Appeals of New York.

Feb. 22, 1990.

[75 N.Y.2d 351] Robert M. Pitler and Daniel E. Rosenfeld, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty. (Carol Teague Schwartzkopf and Barbara D. Underwood, Brooklyn, of counsel), for respondent.

[75 N.Y.2d 352] Guy C. Quinlan, Kenneth Kimerling and Kathleen A. Murray, New York City, for Puerto Rican Legal Defense and Educ. Fund, Inc., amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant's essential argument attacks the judgment of conviction as having been secured in violation of his equal protection rights because, as he asserts, the prosecution discriminatorily exercised its peremptory challenges to exclude two Latino persons from the jury that ultimately found him guilty of two counts each of attempted murder and criminal possession of a weapon (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). Defendant, also a Latino, satisfied the Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra ), threshold predicate of discriminatory use of peremptory challenges by the prosecutor's rejection of all the Latino prospective jurors.

The dispositive issue--circumscribed in this case by pertinent undisturbed factual findings--is whether the prosecution can be said to have failed to satisfy its burden, in turn, to come forward with a neutral explanation for its eschewal of those prospective jurors so as to refute the inference of purposeful discrimination. The two prospective jurors at issue, who were fluent in Spanish, indicated, according to the prosecutor's articulated belief, that they would only try to respect as authoritative the official court interpreter's translation of evidence given by Spanish-speaking witnesses. This prosecutorial assertion, sufficiently documented by the record and supported in the findings of the two lower courts, warrants our concluding that the prosecutor fulfilled his burden of coming forward with a satisfactory explanation that the peremptory strikes in this case were neutral and nondiscriminatory. We thus affirm the order of the Appellate Division, 140 A.D.2d 543, 528 N.Y.S.2d 625, which had affirmed the conviction.

The conviction, after a jury trial, arose out of a shooting in which defendant had attempted to kill his young woman friend and her mother as they left a restaurant in Brooklyn. During the incident, random shots from defendant's gun struck and wounded two other patrons of the restaurant.

Prior to trial and after the voir dire examination of 63 jurors had been completed and nine jurors had been selected, defense counsel objected to the prosecutor's use of peremptory challenges excusing four potential jurors with Latino surnames. Over the course of an extensive record colloquy, defense counsel objected repeatedly that the prosecutor had removed every Latino from the venire and moved for a mistrial.

The Assistant District Attorney responded that he had challenged two of the jurors, Munoz and Rivera, because each had a brother who had been prosecuted by the same District Attorney's office and that in his opinion these jurors could not be fair in their deliberations on the case. The prosecutor further explained that he had challenged the other two jurors, Mikus and Gonzalez--the only jurors pertinent to the disposition of the issue before us--because each had given him a basis to believe from words and actions that their Spanish language fluency might create difficulties in their accepting the official court interpreter's translation of the testimony of the Spanish-speaking witnesses. Among selected expressions made during the colloquy, the prosecutor proffered this summary for the record: "ASSISTANT DISTRICT ATTORNEY: Your Honor, my reason for rejecting the--these two jurors--I'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter. * * * We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that in a case where the interpreter will be for the main witnesses, they would have an undue impact on the jury." (Appellant's appendix, at A-23--A-24 [emphasis added]; see also, appellant's appendix, at A-26--A-28, A-29). The trial court then denied defendant's mistrial motion, stating: "THE COURT: Therefore, he [Assistant District Attorney] didn't make a challenge for cause based upon that, but he said the reason that he did in fact remove these jurors is because even though they said they could listen to what the interpreter said and not let their own evaluation of what the witness says be the answer that they would utilize, he said I have grave doubts, and that's why I'm asking ". (Appendix, at A-32 [emphasis added].) The case was tried with no Latinos on the jury and defendant was convicted. The Appellate Division affirmed the judgment of conviction and a Judge of this court granted leave to appeal.

New York's Criminal Procedure Law provides a method for both the prosecution and defense counsel to challenge for cause the selection of a potential juror if it can be shown that bias may prevent that juror from deciding the case impartially (CPL 270.20). Additionally, a limited number of peremptory challenges--because counsel may intuit a bias that is not documentarily demonstrable sufficient for a challenge for cause--are allowed to exclude jurors usually without any explanation (CPL 270.25).

The 1986 rule in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra, added restrictions to the exercise by prosecutors of their peremptory challenges against members of a defendant's racial class. It abandoned the prosecutorially weighted evidentiary tilt of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 and imposed a new and important calculus. To succeed initially in erecting the presumption of purposeful discrimination, the defendant must demonstrate (1) membership in a "cognizable racial group"; (2) the exercise of peremptory challenges by the prosecutor to exclude members of the defendant's group; and (3) "facts and any other relevant circumstances rais[ing] an inference" of a discriminatory purpose (Batson v. Kentucky, supra, 476 U.S. at 96, 106 S.Ct. at 1722).

At that point the burden shifts to the prosecution to come forward and overcome the attribution and inference of purposeful discrimination with an articulable neutral explanation for having excused those jurors. The prosecutor's explanation need not rise to the level for sustaining a challenge for cause. On the other hand, the prosecutor cannot simply state that rejecting the jurors rested on the assumption they might be favorably disposed to the defendant because of shared race or ethnic similarities. While the prosecutor has this burden of coming forward, "the ultimate burden of persuasion" must be carried by the person alleging the intentional discrimination (Batson v. Kentucky, supra, at 94, n. 18, 106 S.Ct., at 1722, n. 18). By these respective weights, Batson calibrates the test and burdens while supplying a potent and appropriate remedy against invidious petit jury discrimination.

In People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208, we applied the Batson rule retroactively under Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. Defendant, a black woman, was charged with murdering and robbing a white man. There were five black prospective jurors in the venire and the prosecutor excused them all peremptorily. We held that the prosecutor's " 'pattern' of strikes" gave rise to an inference of discrimination satisfying defendant's lighter burden (People v. Scott, supra, 70 N.Y.2d at 425-426, 522 N.Y.S.2d 94, 516 N.E.2d 1208). We reversed without having to address in that case the issue of what constitutes a neutral explanation under Batson.

Here, no one challenges the triggering of Batson's threshold. The exercise of prosecutorial peremptory challenges to exclude the only Latino jurors in the prosecution of a Latino defendant is enough (Batson v. Kentucky, 476 U.S., supra, at 96-97, 106 S.Ct., at 1722-1723; People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208, supra). The only new issue, circumscribed here by pertinent undisturbed factual findings, is whether the prosecution responded with a satisfactory nondiscriminatory explanation for excluding the only Latino jurors. Defendant contends as a matter of law that the burden has not been met because the Latino origins and the Spanish language are so inextricably intertwined that an exclusion of Latinos on the basis of language is inescapably, almost irrefutably, an exclusion on forbidden ethnic or racial grounds.

These jurors, however, were challenged because they indicated their knowledge of the Spanish language might interfere with their sworn responsibility as jurors to accept the official translation of the Spanish-proffered testimony. So it cannot be, as defendant has posed it and as the dissenting opinion would conclude, that the isolated language-ethnic identity factor alone determines this case.

Rather, the prosecutor's belief was that the two Spanish-speaking jurors...