People v. Allen

• Decision Date: 06 July 1995
• Citation: 86 N.Y.2d 101,653 N.E.2d 1173,629 N.Y.S.2d 1003
• Parties: , 653 N.E.2d 1173 The PEOPLE of the State of New York, Appellant, v. Robert L. ALLEN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1003

629 N.Y.S.2d 1003

86 N.Y.2d 101, 653 N.E.2d 1173

The PEOPLE of the State of New York, Appellant, v. Robert L. ALLEN, Respondent.

Court of Appeals of New York.

July 6, 1995.

Robert M. Winn, Dist. Atty. of Washington County, Fort Edward (NancyLynn S. Ferrini, of counsel), and Valerie Friedlander, Albany, for appellant.

Gregory V. Canale and William V. Canale, Glens Falls, for respondent.

James M. Catterson, Jr., Dist. Atty. of Suffolk County, Hauppauge (Gregory C. Pavlides and Steven J. Chananie, of counsel), for New York State Dist. Attys. Ass'n, amicus curiae.

OPINION OF THE COURT

KAYE, Chief Judge.

Determining whether a party has exercised peremptory challenges to strike potential jurors for reasons that implicate equal protection concerns is described as a three-step process (Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1722-1724, 90 L.Ed.2d 69; Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1865-1866, 114 L.Ed.2d 395, affg. 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621). First, the defendant must allege sufficient facts to raise an inference that the prosecution has exercised peremptory challenges for discriminatory purposes. ¹ Second, if the requisite showing has been made, the burden shifts to the prosecution to articulate a neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the proffered reasons are pretextual (Hernandez, 500 U.S. at 358-359, 111 S.Ct. at 1865-1866).

In this appeal, defendant alleges that the People failed to meet their burden under step two because they did not show that the neutral reasons they advanced for striking some men were consistently applied to women jurors who were seated. The Appellate Division, in concluding that the People were obligated to make such a showing as part of step two, applied an incorrect legal standard.

Facts

During voir dire at defendant's trial for incest and sexual abuse, the prosecutor exercised 14 of her 15 peremptory challenges against male jurors and defense counsel exercised all 15 peremptory challenges against female jurors. The jury ultimately consisted of five men and seven women.

Defendant moved for a mistrial, alleging that the prosecutor's peremptory challenges had been used in a discriminatory manner, to strike potential jurors solely because of their gender. The People offered to provide neutral explanations for their challenges, but the trial court summarily denied defendant's motion. On appeal, the Appellate Division held that defendant had established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra, that the burden shifted to the People to provide gender-neutral explanations, and that the trial court erred in summarily denying a mistrial without requiring the People to offer neutral reasons. The matter was remanded to afford that opportunity (see, People v. Allen, 199 A.D.2d 781, 605 N.Y.S.2d 503).

The hearing, held before the original Trial Judge nearly two years after verdict, was limited to the inquiry identified by the Appellate Division: permitting the prosecutor to provide gender-neutral reasons for her challenge to the 14 men. All parties, and the court, had reviewed the voir dire minutes. Defense counsel was allowed, after each explanation, to state any challenges to the reason given. As to 12 of the 14, defense counsel either expressed no quarrel with the reason given or questioned only the reasonableness of the prosecutor's belief that the juror harbored bias.

As to four of the 12, the prosecutor explained that their responses to inquiries revealed actual bias against children as credible witnesses in a case involving child sexual abuse. One, for example, stated his belief that children could provoke their own sexual abuse. Another showed sympathy toward sexual offenders as suffering from an illness that caused their conduct. A third stated that children often "blow out of proportion" sexual experiences with adults. The fourth believed child sexual abuse was a "family problem," only rarely a criminal matter.

Another four, according to the prosecutor, revealed personal circumstances that caused her concern about possible bias in favor of defendant or against children. One juror was childless, a circumstance the prosecutor said she believed would make it difficult for him to assess a case involving a relationship between father and daughter. Another was estranged from his own children. A third was involved in a bitter divorce and custody dispute; the prosecutor said that in her view false allegations of child sexual abuse most frequently arose in that context. The fourth was a school bus driver and custodian, and while he had never actually been the target of complaints, the trial court agreed that he showed skepticism about the veracity of children's complaints against adults.

Four more of the potential jurors, according to the prosecutor, had hostile associations with the Assistant District Attorney or friendly associations with defense counsel or his relatives. A thirteenth was a neighbor of the defendant. A fourteenth potential juror was struck because he did not seem, in the prosecutor's view, to be sufficiently assertive. The last peremptory was used against a woman whose son was being prosecuted by the District Attorney's office.

As to two of the explanations given by the prosecutor--the insufficiently assertive male juror and a juror who was in a bowling league with defense counsel--defense counsel argued that the prosecutor had failed to strike female jurors with similar characteristics. To both of those challenges, the prosecutor responded with additional reasons why she had retained the female jurors. Unlike the soft-spoken women jurors identified by defense counsel, the unassertive male juror was in line to be foreperson. The woman who ultimately became foreperson was, according to the prosecutor, assertive and confident in her answers.

Counsel also disputed whether a prior association with his office had been evenly invoked as a reason for striking venirepersons, claiming "many" women on the panel knew defense counsel but had been seated. The prosecutor disputed this characterization, stating only one female juror fell into that category, a woman who said that defense counsel had represented her. That woman, however, was also a neighbor of a member of the District Attorney's staff, who had told the trial assistant he thought she would be a good juror. Defendant identified no other women seated as jurors despite an association with defense counsel or defendant.

For each of the strikes, the court found that the prosecutor had given a gender-neutral reason, concluding that defendant had failed to demonstrate discrimination by the prosecutor in exercising peremptory challenges.

On appeal, defendant contended that "a number" of the reasons advanced by the prosecution were pretextual, and he had therefore "carried his burden of proving discrimination." The Appellate Division articulated the following standard of review:

"Although the 'gender neutral' (or 'race neutral') reason for exercising a peremptory challenge need not rise to the level of a challenge for cause (see, People v. Hernandez, 75 NY2d 350, 357 [553 N.Y.S.2d 85, 552 N.E.2d 621], affd 500 US 352 [111 S.Ct. 1859, 114 L.Ed.2d 395], it must be legitimate and not merely a pretext for discrimination (see, J.E.B. v. Alabama ex rel. T.B., [511] US [----, ----] [114 S.Ct. 1419, 1430], 128 LEd2d 89, 107). To determine whether the stated reasons are, in fact, legitimate and sufficient to rebut defendant's prima facie showing, the trial court must 'undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available" ' (Batson v. Kentucky, supra, at 93 , quoting Arlington Hgts. v. Metropolitan Hous. Dev. Corp., 429 US 252, 266 [97 S.Ct. 555, 563-564, 50 L.Ed.2d 450], including information gleaned from the voir dire conducted of other prospective jurors with respect to whom challenges were not exercised." (206 A.D.2d 593, 616 N.Y.S.2d 672.)

The court concluded that, in order to rebut a defendant's prima facie showing, the People were required to demonstrate not only that gender-neutral reasons existed for the challenged male jurors but also that those same neutral reasons had been evenly applied to female jurors who exhibited the purportedly objectionable characteristic. Failure to provide an explanation for such a discrepancy was "a strong indication that the reason furnished was not the true basis for the strike" (206 A.D.2d, at 593, 616 N.Y.S.2d 672).

In considering defendant's claim that the prosecutor's gender-neutral reasons were not applied equally to women, and were therefore pretextual, the Appellate Division reviewed both the evidence adduced at the Batson hearing and the voir dire minutes. On its own reading the court discerned that

"the prosecutor claimed to have struck one male juror because he was unmarried and had no children, yet she failed to use a peremptory challenge to remove a young woman who was also unmarried and apparently childless. Another man was purportedly removed because he knew the defense attorney, and a third because of his familiarity with an attorney (Robert Douglas) who had been associated with the prosecutor's office and because his cousin was an attorney.

"Challenges were not, however, exercised to strike women, despite their associations with Douglas or the defense attorney--one woman who was ultimately seated on the jury had employed defendant's attorney just three years previously--and despite the fact that they admitted having lawyers as close relatives. And finally, although a male was removed solely because he was divorced, one of the women on the panel, who had stated that she was not married but had children, was not even questioned as to her marital status and went unchallenged by the People." (206 A.D.2d...