People v. Bessard

• Decision Date: 13 July 1989
• Citation: 148 A.D.2d 49,543 N.Y.S.2d 760
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael BESSARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 760

543 N.Y.S.2d 760

148 A.D.2d 49

The PEOPLE of the State of New York, Respondent, v. Michael BESSARD, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 13, 1989.

Paul L. Gruner (Denise Y. Dourdeville, of counsel), Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (John Prizzia, of counsel), Kingston, for respondent.

Before MAHONEY, P.J., and KANE, WEISS, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Defendant was convicted of murdering Charles Lindsay during the evening of July 4, 1987 by shooting him twice with a shotgun. The principal evidence against defendant was the testimony of Ronald Newton and forensic evidence establishing that the spent shotgun shell found by the victim's body was fired by a gun bearing defendant's fingerprint seized at his apartment. Newton testified that in the late evening of July 4, 1987 he was visiting his brother, who lived in the same apartment building as defendant, and defendant, a friend of Newton, was present. He and defendant discussed obtaining some cocaine and drove to the home of Richard Mathis to buy the drug. After obtaining the cocaine and using some of it with Mathis, they left to drive home. En route, defendant related to Newton that, earlier that evening, he had shot the victim over an aborted cocaine transaction in which he gave the victim $20, but did not receive the drugs.

On appeal defendant raises three points. First, he urges that reversal is required because County Court failed to conduct a hearing on his formal motion challenging the jury panel for having inadequate representation of blacks and other minorities and a grossly disproportionate number of persons over the age of 21 (see, CPL 270.10). In neither the affidavit in support of the motion nor the arguments made thereon, however, did defendant set forth any concrete facts, rather than bare conclusions, concerning an alleged discriminatory process of panel selection or demographic comparisons, from which the requisite inference could be drawn of an intentional and systematic exclusion of minorities (see, People v. Parks, 41 N.Y.2d 36, 43, 390 N.Y.S.2d 848, 359 N.E.2d 358). Without such a factual showing, County Court was not required to hold a hearing before denying defendant's motion (see, People v. Tucker, 115 A.D.2d 175, 495 N.Y.S.2d 244, lv. denied 67 N.Y.2d 766, 500 N.Y.S.2d 1039, 491 N.E.2d 296; People v. Lanahan, 96 A.D.2d 675, 676, 466 N.Y.S.2d 796). We note also that denial of an identical challenge to the Ulster County jury selection process, after a full hearing, was recently upheld by this court (People v. Gregory ZZ., 134 A.D.2d 814, 815, 521 N.Y.S.2d 873, lv. denied 71 N.Y.2d 905, 527 N.Y.S.2d 1014, 523 N.E.2d 321).

Defendant next argues that, as a black person, he was denied his constitutional right to equal protection by the prosecution's utilization of peremptory challenges to exclude black and Hispanic jurors from sitting on his case. Some 63 prospective jurors were examined during voir dire, of which there were two black women, two black men and one Hispanic woman. One black man was excused for cause by consent. The remaining minority jurors were excluded among the 14 peremptory challenges the prosecution exercised. The defense, in expressing objections during voir dire, did not point to any factually specific circumstances giving rise to an inference that the jurors were excluded because of their race or ethnic origin, such as, that their backgrounds and responses to questions would if anything suggest their favorable attitude toward the prosecution (see, People v. Scott, 70 N.Y.2d 420, 425, 522 N.Y.S.2d 94, 516 N.E.2d 1208). However, the exclusion of all three remaining blacks on the panel does evince a " 'pattern' of strikes against black jurors included in the particular venire [which] might give rise to an inference of discrimination" (Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69). Therefore the burden shifted to the prosecution to rebut this prima facie showing of racial discrimination by coming forward with a neutral explanation (id., at 98, 106 S.Ct. at 1723; People v. Miller, 144 A.D.2d 94, 96, 537 N.Y.S.2d 318).

The prosecutor's racially neutral explanation for excusing the three black jurors was several-fold. First, he pointed out that the victim was also black, thus dispelling any conjecture that black jurors would favor defendant. Second, it was asserted that he had devised an ideal juror profile for this particular case of older persons, coming from the same general locale within the county where the murder took place, preferably males rather than females, since they were more likely to have some familiarity with firearms and, therefore, a better comprehension of the forensic evidence regarding defendant's shotgun. The two black women did not fit this profile. Additionally, one of the women exhibited a demeanor the prosecutor found disconcerting for a murder case, in laughing and giggling with two other female jurors (who were also excused) during voir dire and appearing to him oversensitive to inquiries concerning the factor of racial bias. The bona fides of these rationales were substantiated by the prosecutor's pointing out that white women sharing the same characteristics were challenged in the same rounds of questioning as the black women who were excused. Moreover, the prosecutor explained his departure from the profile with respect to two white women who were selected in the same rounds, in that one had been a juror in a prior successful prosecution and the other had some acquaintance at work with two prosecution witnesses. As to the black male prospective juror, the reason advanced for excusing him was that he had been a defense witness in a prior case where there had been a sharp conflict in the testimony of prosecution and defense witnesses.

The foregoing explanations for excluding blacks from the jury were clear, reasonably specific and legitimate (see, Batson v. Kentucky, supra, at 98 n. 20, 106 S.Ct. at 1723 n. 20). Excusing blacks or members of other historically disadvantaged classes on the basis of a neutral juror profile has previously been approved by the courts (see, People v. Merkle, 143 A.D.2d 145, 146, 531 N.Y.S.2d 601, lv. denied 73 N.Y.2d 858, 537 N.Y.S.2d 504, 534 N.E.2d 342; People v. Gregory ZZ., supra, 134 A.D.2d at 816, 521 N.Y.S.2d 873). Although defendant's assertion on appeal may be correct, that the prosecution deviated from its juror profile in subsequent selections of jurors and alternates, this apparent inconsistency was not alluded to at the time and, hence, the prosecution was not given the opportunity to...