People v. Allen

• Decision Date: 23 December 1993
• Citation: 199 A.D.2d 781,605 N.Y.S.2d 503
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert L. ALLEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 503

605 N.Y.S.2d 503

199 A.D.2d 781

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

Supreme Court, Appellate Division,

Third Department.

Dec. 23, 1993.

Gregory V. Canale, Glens Falls, for appellant.

Robert M. Winn, Dist. Atty. (NancyLynn S. Ferrini, of counsel), Hudson Falls, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered June 19, 1992, upon a verdict convicting defendant of the crimes of sexual abuse in the second degree (two counts), sexual abuse in the first degree, endangering the welfare of a child (two counts), rape in the second degree and incest.

Defendant's contentions, other than those relating to his motion for a mistrial on the ground of improper use of peremptory challenges, are either substantively meritless or directed at trial errors which, even assuming they occurred, were harmless at best. County Court's treatment of the mistrial motion, however, prompts us to remit this matter for further consideration.

After the jury was selected and sworn, but before opening statements were made, defendant orally moved for a mistrial claiming that the prosecutor had exercised her peremptory challenges in a discriminatory fashion by using 14 of her 15 available challenges to exclude men solely because of their gender. County Court denied defendant's motion without giving the People--who in response to the motion declared they were ready to do so--an opportunity to demonstrate a gender-neutral reason for each of the strikes.

A prosecutor is not at liberty to exercise peremptory challenges "in contravention of the Equal Protection Clause" of the US Constitution (Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69). Under that clause, discrimination based on gender is tolerable only to the extent that it serves "important governmental objectives" and is "substantially related to achievement of those objectives" (Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397; People v. Liberta, 64 N.Y.2d 152, 170, 485 N.Y.S.2d 207, 474 N.E.2d 567, cert. denied 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310).

Peremptory challenges are viewed as a necessary means of insuring the selection of a fair and impartial jury. However, exclusion of a juror solely because of gender is, by its very nature, not related to a person's fitness to serve and to render a fair verdict (see, United States v. De Gross, 9th Cir., 960 F.2d 1433, 1439 [en banc]. Gender-based discrimination has no more place in the selection of a jury than does discrimination on the basis of race for such procedure, if condoned, similarly serves to "undermine public confidence in the fairness of our system of justice" (Batson v. Kentucky, supra, 476 U.S. at 87, 106 S.Ct. at 1718) and to "impair[ ] the integrity of the criminal trial process" (People v. Kern, 75 N.Y.2d 638, 652, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50). For these reasons, we incline to the view that the exercise of peremptory challenges solely on the basis of gender is impermissible under the Equal Protection Clause, and join with the First and Second Departments (see, People v. Irizarry, 165 A.D.2d 715, 716, 560 N.Y.S.2d 279; People v. Blunt, 162 A.D.2d 86, 89, 561 N.Y.S.2d 90) in holding that claims of gender discrimination in the course of jury selection must be evaluated in accordance with the procedure articulated in Batson v. Kentucky (supra)...