People v. Green

• Decision Date: 02 October 1990
• Citation: 148 Misc.2d 666,561 N.Y.S.2d 130
• Parties: The PEOPLE of the State of New York v. Mark GREEN, Defendant.
• Court: New York County Court

Page 130

561 N.Y.S.2d 130

148 Misc.2d 666

The PEOPLE of the State of New York v. Mark GREEN, Defendant.

Westchester County Court.

Oct. 2, 1990.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains, for People.

Arnold S. Kronick, White Plains, for defendant.

JOHN CAREY, Judge.

The court concludes herein that Batson-like ¹ protection should be afforded to a hearing impaired would-be juror and therefore disallows a proposed peremptory challenge by a prosecutor intended to eliminate a juror solely because she cannot hear. ²

Defendant was charged with unauthorized use of a vehicle in the second degree, criminal possession of stolen property in the fourth degree (two counts) and unlawful possession of marijuana. Jury selection took place on September 24 and 25, 1990. Among the prospective jurors who were sent to the courtroom by the Commissioner of Jurors was one who told the court and counsel, through a sign language interpreter provided by the Commissioner's Office, that she has been deaf since birth. Through the interpreter, who was sworn to interpret accurately between English and sign language, the juror answered all questions put to her by the judge, the assistant district attorney and defense counsel.

The hearing impaired juror was not challenged for cause. However the assistant district attorney stated that he would challenge her peremptorily. The court inquired whether the assistant district attorney had any reason other than the juror's deafness. He said he had no other reason. The court disallowed the peremptory challenge, and the juror was sworn and seated.

Before delivering pre-opening remarks to the entire jury, the court administered the following oath to a replacement interpreter who had also been provided by the Commissioner's office:

Do you swear that you will accurately translate from the English language into the sign language understood by the juror [name deleted], who is deaf, and from that language as used by her into the English language, and that during the deliberations of the jury, while present in the jury room, your communications with her and the other jurors will be limited to translating for her what the other jurors say and translating for them what she says, so that you will not otherwise participate yourself in the jury's deliberations, and that you will keep secret all that you hear in the jury room unless ordered differently by the court or unless authorized by [name deleted] after the trial is finished to disclose anything said by her during the deliberations.

The second half of the oath was patterned on admonitions of the Court of Appeals in People v. Guzman, 76 N.Y.2d 1, 7, 556 N.Y.S.2d 7, 555 N.E.2d 259 (1990). ³ That case involved a challenge for cause where the ability of the juror to participate was closely scrutinized. Here no question was raised concerning the juror's ability. Only the isolated fact of her deafness was mentioned. Thus no disability-neutral reason for the peremptory challenge was given. This court was therefore alerted to the Court of Appeals' holding in Guzman that "there is no longer a blanket statutory prohibition against jury service by those, such as the juror in this case, whose hearing is impaired to a profound degree." 76 N.Y.2d at 5, 556 N.Y.S.2d 7, 555 N.E.2d 259. ⁴

Section 11 of article I of the New York State Constitution provides:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

The juror in question was not singled out as a member of any of the categories specified in the second sentence quoted. However, it is still possible for her to have been denied equal protection under the first sentence if she was excluded from serving as a juror for no reason other than her impaired hearing. ⁵

Jury service is a "privilege of citizenship" secured by article I, § 1 of this state's constitution. Further, it is the declared policy of the state that

all eligible citizens shall have the opportunity to serve on grand and petit juries in the courts of this state ...

Judiciary Law § 500. The Court of Appeals in Guzman held that deafness alone does not necessarily make an otherwise qualified individual ineligible to serve as a juror so long as adequate interpretation using "signed English" is available. See also U.S. v. Dempsey, 830 F.2d 1084 (10th Cir.1987).

This state's constitutional right to equal protection is directed against state action. People v. Kern, 75 N.Y.2d 638, 653, 555 N.Y.S.2d 647, 554 N.E.2d 1235 (1990). State action is present here since it was an assistant district attorney who sought to peremptorily challenge the juror. ⁶

Disabled persons in general and hearing impaired persons in particular may constitute a "suspect classification" ⁷ in view of the protections afforded them by New York Statutes. Cf. §§ 290, 292(21) and 296(14) of the Executive Law, § 47 of the Civil Rights Law and § 390 of the Judiciary Law. But see Eckstein v. Kirby, 452 F.Supp. 1235 (E.D.Ark.1978) (state statute disqualifying persons whose hearing is substantially impaired from serving on petit and grand juries does not violate due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution). If so classified, state action affecting them as a group would be subject to an exacting degree of judicial scrutiny. Similarly, strict judicial scrutiny may be appropriate if individuals have a fundamental right to serve as jurors, as is possible given the explicit provisions protecting that right found in the Constitution and statutes. The court, however, need not decide these issues at this time in view of its decision below.

The assistant district attorney's effort to bar the hearing impaired person from jury service must, at the very least, have a rational basis. Cf. Matter of Levy v. N.Y.C., 38 N.Y.2d 653, 382 N.Y.S.2d 13, 345 N.E.2d 556 (1976); Winkler v. Spinnato, 134 A.D.2d 66, 523 N.Y.S.2d 530 (2d Dept.1987) aff'd, 72 N.Y.2d 402, 534 N.Y.S.2d 128, 530 N.E.2d 835 (1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1640, 104 L.Ed.2d 155 (1989); Matter of the Board of Education of the Northport-East Northport Union Free School District v. Ambach, 107 Misc.2d 830, 839, 436 N.Y.S.2d 564 (Sup.Ct. Albany Co.1981), modified, 90 A.D.2d 227, 458 N.Y.S.2d 680 (3d Dept.1982), aff'd, 60 N.Y.2d 758, 469 N.Y.S.2d 669, 457 N.E.2d 775 (1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). In view of the holding in Guzman that deafness per se does not support a challenge for cause and the assistant district attorney's admission that his peremptory challenge here was based solely on the disability and not on any doubt of the juror's ability to communicate, his proposed action was not rational and violated the juror's right to equal protection under the State Constitution.

Furthermore, the Americans With Disabilities Act of 1990, Public Law 101-336, signed by the President on July 26, 1990, must also be heeded even if not yet effective, and whether or not it would...