People v. Baker

• Decision Date: 12 July 1990
• Citation: 163 A.D.2d 188,558 N.Y.S.2d 44
• Parties: The PEOPLE of the State of New York, Respondent, v. James BAKER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 44

558 N.Y.S.2d 44

163 A.D.2d 188

The PEOPLE of the State of New York, Respondent, v. James BAKER, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

July 12, 1990.

R.E. Shillingford, New York City, for respondent.

James Baker, pro se.

M.E. Lipson, Garden City, for defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, ASCH, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, New York County (Irving Lang, J.) rendered May 15, 1986, which convicted defendant, after jury trial, of criminal possession of a weapon in the third degree and resisting arrest and sentenced him as a persistent violent felony offender to a prison term of 6 years to life on the weapons charge, and a concurrent one year prison term on the resisting arrest charge, held in abeyance, and the matter remanded to the Supreme Court for a hearing in accordance with this memorandum.

The conviction of the defendant, a black man, arises from an incident in which he allegedly assaulted a white police woman. An all-white jury convicted the defendant of two charges. Prior to trial, at the conclusion of the jury selection, defense counsel moved for a mistrial, arguing that the defendant was being deprived of a fair trial because the prosecutor had improperly exercised his peremptory challenges by intentionally striking potential black jurors, leaving an all-white jury, except for the second alternate, who was black.

In response to the oral motion, the trial court stated: "There were only about five or six blacks on the entire panel. Two black jurors excused themselves.... There was another black juror who asked to be excused. I did notice two or three of the other black jurors were excused by the People, one of whom I thought would be a very fine juror, frankly, for either side. With respect to this last batch, if I were the prosecutor, I would have excused the jury and have kept up. Do you want to say anything with respect to this". The ADA merely stated that he resented the defense suggestion of racism and conclusorily denied that he challenged any juror on that basis. The trial court then denied the motion for a mistrial.

Two weeks after defendant's conviction, the United States Supreme Court rendered its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, holding that a defendant can establish a prima facie case of purposeful discrimination in selection of a petit jury, solely on evidence concerning the prosecutor's exercise of peremptory challenges, and that once defendant makes a prima facie showing, the burden shifts to the prosecutor to come forward with a neutral explanation for challenging black jurors. Batson applies retroactively to all pending appeals. (Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649.)

Notwithstanding some confusion in the...