People v. Gregory ZZ

• Decision Date: 25 November 1987
• Citation: 134 A.D.2d 814,521 N.Y.S.2d 873
• Parties: The PEOPLE of the State of New York, Respondent, v. GREGORY "ZZ", 1 Appellant. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 873

521 N.Y.S.2d 873

134 A.D.2d 814

The PEOPLE of the State of New York, Respondent, v. GREGORY "ZZ", ¹ Appellant Supreme Court, Appellate Division Third Department.

Nov. 25, 1987.

Pretsch & Mainetti & Kingston (Victor R. Mainetti, of counsel) for appellant.

Michael Kavanagh, Ulster County Dist. Atty., Kingston (Joan Lamb, of counsel), for respondent.

Before MAIN, J.P., and CASEY, WEISS, MIKOLL and LEVINE, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered May 14, 1986, which sentenced defendant upon his adjudication as a youthful offender.

After a jury trial, defendant, a 16-year-old black male, was convicted of rape in the first degree based on an incident at the Pine Grove Resort in Ulster County on June 14, 1985. The alleged victim, also 16 years old, was a lifeguard at the resort. At sentencing, County Court vacated the conviction and accorded defendant youthful offender status. On this appeal, defendant maintains that (1) he was deprived of his constitution right to a jury panel chosen from a fair cross section of the community, (2) the prosecutor exercised his peremptory challenges to exclude minorities from the petit jury in violation of the constitutional principles recently enunciated in Batson v. Kentucky, 467 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and (3) the evidence was legally insufficient to support the verdict. We find these contentions to be without merit.

Defendant's initial argument is premised on the assertion that blacks have been underrepresented on Ulster County jury panels for a substantial period of time. Both the People and County Court acknowledged that blacks are a substantial and identifiable group in Ulster County and have long been underrepresented on jury panels. To complete a prima facie case, however, defendant was required to show that this underrepresentation resulted from some systematic discrimination (see, Duren v. Missouri, 439 U.S. 357, 366, 99 S.Ct. 664, 669, 58 L.Ed.2d 579; People v. Guzman, 60 N.Y.2d 403, 410, 469 N.Y.S.2d 916, 457 N.E.2d 1143, cert. denied 466 U.S. 951, 104 S.Ct. 2155, 80 L.Ed.2d 541; 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). In effect, defendant was required to demonstrate that the exclusion of blacks was "inherent in the particular jury-selection process utilized" (Duren v. Missouri, supra, 439 U.S. at 366, 99 S.Ct. at 669). In our view, no such showing was made. During the course of a hearing on this issue, Robert Jordan, the Ulster County Commissioner of Jurors, testified that the approximately 12,000 members of the master jury pool were primarily obtained from the County's voter registration lists and that jury panels were selected at random from this list. Jordan further elaborated on the efforts made to attract additional minority jurors, including appearing before a local chapter of the NAACP and communicating with the local State college. There is simply no indication in this record that the underrepresentation of blacks was the product of the selection process utilized. Nor did defendant make any attempt to demonstrate or even suggest that the panel selection process was tainted by intentional or deliberate discrimination (see, People v. Guzman, supra, 60 N.Y.2d at 412, 469 N.Y.S.2d 916, 457 N.E.2d 1143). As such, County Court properly denied defendant's challenge to the jury panel.

Next, defendant asserts that by peremptorily challenging the only two black venire members, and another member apparently of Hispanic extraction, the prosecutor violated his rights under the equal protection clause of the U.S. Constitution 14th Amendment, which prohibits the exclusion of a potential juror solely on the basis of race (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,supra ). ² We reach a contrary conclusion. The People concede that defendant presented a prima facie case of discrimination with respect to the two potential black jurors (see, Batson v. Kentucky, supra ). ³ As such, it was incumbent upon the prosecution to provide race-neutral explanations for the exercise of these peremptory challenges (id.). Since the finding of intentional discrimination is a factual matter requiring an evaluation of the prosecutor's credibility, County Court's assessment is entitled to great deference (id., at 89 n. 21, 106 S.Ct. at 1724 n. 21). Here, the prosecutor essentially explained that he excused the minority jurors because each failed to meet a profile designed for the case of Ulster County residents with children near the victim's age. Notably, the record shows that the prosecution challenged other jurors who were single or had children much older than the victim on a fairly consistent basis. In our view, County Court could readily conclude that the exclusion of the minority jurors was premised on articulable and racially neutral criteria (see, People v. Baysden, 128 A.D.2d 795, 513 N.Y.S.2d 495; People v. Cartagena, 128 A.D.2d 797, 513 N.Y.S.2d 497; People v. Simpson, 121 A.D.2d 881, 883, 504 N.Y.S.2d 115, lv. denied 68 N.Y.2d 773, 506 N.Y.S.2d 1058, 498 N.E.2d 160; cf., People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208 [1987] ). Thus, the inference of purposeful discrimination was sufficiently rebutted.

Finally, viewed in a light most favorable to the People, the record provides ample evidence of forcible compulsion to support the jury's verdict (see, People v. Butler, 132 A.D.2d 771, 772, 517 N.Y.S.2d 580, 581; People v. Sargeant, 128 A.D.2d 914, 915, 512 N.Y.S.2d 570). The...