Holtzman v. Supreme Court of State of N.Y., Kings County

• Citation: 526 N.Y.S.2d 892,139 Misc.2d 109
• Parties: Elizabeth HOLTZMAN, in her official capacity as District Attorney of Kings County, Plaintiff, v. The SUPREME COURT OF the STATE OF NEW YORK, COUNTY OF KINGS, and the Justices thereof who are currently assigned to Criminal Term, and the Criminal Court of the City of New York, County of Kings, and the Judges thereof, all in their official capacities, Defendants.
• Decision Date: 07 March 1988
• Court: United States State Supreme Court (New York)

Page 892

526 N.Y.S.2d 892

139 Misc.2d 109

Elizabeth HOLTZMAN, in her official capacity as District Attorney of Kings County, Plaintiff, v. The SUPREME COURT OF the STATE OF NEW YORK, COUNTY OF KINGS and the Justices thereof who are currently assigned to Criminal Term, and the Criminal Court of the City of New York, County of Kings, and the Judges thereof, all in their official capacities, Defendants.

Supreme Court, Westchester County.

March 7, 1988.

Elizabeth Holtzman, Dist. Atty. of Kings County, Brooklyn (Barbara Underwood, of counsel), for plaintiff.

Robert Abrams, Atty. Gen., New York City (Abigail I. Petersen, of counsel), for defendants.

Caesar D. Cirigliano, Attorney-in-Charge, Criminal Defense Div., New York City (Arnold S. Cohen, Laura J. Miller, Special Litigation Unit, of counsel), for amicus curiae, the Legal Aid Soc.

Barry Kamins, Flamhaft Levy Kamins Hirsch & Booth, Brooklyn, for amici curiae Kings County Criminal Bar Ass'n., Brooklyn Bar Assn.

PETER P. ROSATO, Justice.

Plaintiff Holtzman, in her official capacity as District Attorney of Kings County, seeks a judgment pursuant to CPLR 3001(1) declaring that both the United States and New York State Constitutions prohibit defense counsel from exercising "race-based" peremptory challenges, i.e., using peremptory challenges to exclude prospective jurors on the basis of race, or for that matter, on the basis of sex, religion, or national origin; (2) declaring that the judges and justices named herein are not to grant peremptory challenges without making further inquiry when it is shown, prima facie, that defense counsel are in fact exercising race-based peremptories, and (3) declaring that CPL § 270.25(1) is unconstitutional to the extent that it "... either authorizes unconstitutional discrimination by criminal defendants and their attorneys in jury selection, or requires trial judges to enforce such discrimination and dismiss potential jurors who are so challenged." (See plaintiff's memorandum of law in opposition to defendant's motion to dismiss at page 2, emphasis added.)

The Attorney General, on behalf of the named defendants, has moved to dismiss the instant complaint, ¹ essentially on two grounds: one, that plaintiff lacks standing to bring this action, either in her own right or as a representative of prospective excluded jurors, and two, even if, arguendo, plaintiff is found to have standing, she has not demonstrated that the conduct complained of constitutes state action, in which case the alleged conduct would not be reviewable under either federal or state constitutional provisions.

At the outset, and before turning to the various legal issues raised, the Court would briefly touch on the factual underpinnings of the instant application. Plaintiff, in support of her claim that her office has witnessed "persistent use of peremptory challenges by criminal defendants and their attorneys along racial lines ..." (see plaintiff's verified complaint at page 3), has submitted affirmations from several current or former assistant district attorneys in her office who attest to having witnessed defense counsel exercise what appeared to be race-based peremptories in a number of crimin cases. Those cases specifically cited are (1) People v. Gino Bova, Kings County Indict. # 3545/82 (defense counsel allegedly used fifteen peremptory challenges to exclude thirteen black and two Hispanic potential jurors, the result being an all-white jury); (2) People v. Paul Mormondo, Kings County Indict. # 3533/82 (nine of eleven black potential jurors challenged peremptorily by defense counsel; jury panel eventually selected consisted of eleven whites and one black); (3) People v. Joseph Wiggins, Eric Musial and Ronald Sutter, Kings County Indict. # 2694/83 (defense attorneys peremptorily challenged fifteen black potential jurors and challenged four remaining black potential jurors for cause, thereby excluding all nineteen black potential jurors); (4) People v. George Duncan and Lin Duncan, Kings County Indict. # 4115/84 (defense counsel appeared to be excluding white potential jurors on trial of two black defendants); (5) People v. Joseph Vacchio, Kings County Indict. # 117-85 (defense counsel peremptorily challenged eight of nine black potential jurors; jury selected consisted of eleven white jurors and one black juror (as well as one black alternate), after a tenth black juror was excused for cause); and (6) People v. Michael Carter, Kings County Indict. # 1093/86 (defense counsel exercised fourteen of fifteen peremptory challenges against potential white jurors, resulting in a jury of eleven blacks and one white).

The Attorney General, representing the named defendants in support of their motion to dismiss, disputes plaintiff's assertion that such a practice is "persistent" or "widespread." Nonetheless, without conceding "the accuracy or truth of the allegations made by the District Attorney," the record should reflect that it is defendants' position that "... for purposes of the instant motion to dismiss, the allegations in the complaint must be accepted as true ..." (see defendants' reply memorandum of law at page 7). Thus, at least insofar as the six Kings County cases specifically cited are concerned, the facts essentially are not in dispute for purposes of the immediate application. ²

Another threshold argument is raised in support of defendants' motion to dismiss. The Attorney General points to the very recent Article 78 proceeding brought in Matter of Ladone v. Demakos, 519 N.Y.S. 2d 417, 133 A.D.2d 435 (2d Dept.1987), an outgrowth of the so-called "Howard Beach" case, where the attorneys for the named defendants were directed by the trial judge to respond to allegations that they were exercising "race-based" peremptories to exclude black potential jurors. There, in dismissing the Article 78 proceeding seeking to prohibit enforcement of the trial judge's order, the Attorney General correctly points out that the Second Department ruled that prohibition did not lie because another remedy was available to the defendants, namely, direct appeal. (And see companion case of People v. Scott Kern, 137 A.D.2d 862, 524 N.Y.S.2d 521), where, in the context of an application seeking bail pending appeal, the Second Department pointed out that among the potential issues to be raised on appeal was one of "first impression," namely, whether the trial court erred in requiring defense counsel to set forth non-racial, "neutral" reasons for the manner in which he exercised peremptory challenges.

However, at the threshold, the case law recognizes significant differences between an Article 78 proceeding in the nature of a writ of prohibition and an action, such as the instant one, for declaratory judgment. In so many words, the Court of Appeals has held that "... declaratory relief is available in a wider range of circumstances than is prohibition." See Mtr. of Morgenthau v. Erlbaum, 59 N.Y.2d 143, at pg. 148, 464 N.Y.S.2d 392, 451 N.E.2d 150. Unlike an Article 78 proceeding, it is by now well-settled that while a court may decline to entertain a declaratory judgment action if other remedies are available, "... the mere existence of other adequate remedies, however, does not require dismissal." (See Mtr. of Morgenthau, supra, at pg. 148, 464 N.Y.S.2d 392, 451 N.E.2d 150.) Moreover, "the remedy (of declaratory judgment) is available in cases 'where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved.' " (See Mtr. of Morgenthau, supra, at pg. 150, 464 N.Y.S.2d 392, 451 N.E.2d 150, citing Dun & Bradstreet, Inc. v. City of N.Y., 276 N.Y. 198, 206, 11 N.E.2d 728.)

This is precisely the situation here. Plaintiff seeks to test the constitutional validity of CPL § 270.25(1), to the extent that it authorizes defense counsel to make racially motivated peremptory challenges. No real questions of fact have been raised insofar as the six Kings County cases relied upon by plaintiff. Generally speaking, declaratory relief, involving a determination of the constitutionality of a statute, is usually deemed proper. See Mtr. of Morgenthau, supra, 59 N.Y.2d at pg. 150, 464 N.Y.S.2d 392, 451 N.E.2d 150. Moreover, without in any way seeking to characterize plaintiff's allegations as to whether the exercise of "race-based" peremptories is "widespread," suffice it to say that plaintiff has adequately demonstrated that the issue has already arisen in several other cases, that it is an issue potential far-reaching in scope, and that it is likely to arise again, all factors which tend to favor entertaining the instant application. See Mtr. of Morgenthau, supra, at pg. 152, 464 N.Y.S.2d 392, 451 N.E.2d 150. ³

Thus, the recent Second Department opinion in Mtr. of Ladone, supra, declining to entertain an Article 78 proceeding, is clearly distinguishable; accordingly, plaintiff's application seeking relief in the form of a declaratory judgment action under the set of circumstances presented herein would appear to be at least procedurally proper. However, before this Court can proceed to entertain the merits of plaintiff's application, yet another threshold question must be answered, namely, and aside from the nature or form of the remedy sought, does plaintiff have the requisite standing to bring on such an action? Here, two issues must be addressed, i.e., (1) does plaintiff have standing to sue as a representative of those prospective jurors who have been excluded as a result of the exercise of the allegedly race-based peremptories, or (2) does plaintiff have standing to sue in her own right? First, insofar as the question of plaintiff's possible standing as a representative of a third party, i.e., excluded potential jurors, is concerned, this Court recognizes that one major reason to grant standing to a party as a representative of a third party is the desire to overcome an otherwise "... impenetrable barrier...