People v. Guzman

• Decision Date: 27 September 1982
• Citation: People v. Guzman, 89 A.D.2d 14, 454 N.Y.S.2d 852 (N.Y. App. Div. 1982)
• Parties: The PEOPLE, etc., Respondent, v. Guillermo GUZMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 852

454 N.Y.S.2d 852

89 A.D.2d 14

The PEOPLE, etc., Respondent, v.Guillermo GUZMAN, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 27, 1982.

William E. Hellerstein, New York City(Charlene Terzian Hyler and Elaine T. Stogel, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist.Atty., Brooklyn (Holly L. Halper and Allan P. Root, Brooklyn, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, MANGANO and GIBBONS, JJ.

PER CURIAM.

The paramount question on this appeal is whether defendant's indictment should be dismissed on the ground that alleged constitutional and statutory violations in the Kings County Grand Jury selection process caused an underrepresentation of Hispanics in the Grand Jury pool and in the Grand Jury that indicted him.In our view, the question must be answered in the negative, and the judgment of conviction must be affirmed.

BACKGROUND

The defendant Guzman was indicted in August, 1979, for the following crimes: robbery in the first and second degrees, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the third degree.

Thereafter the defendant, who is of Hispanic origin, moved to dismiss the indictment on the ground that, as a result of State action, Hispanics had been impermissibly excluded from the Grand Jury pool thereby violating his constitutional guarantee of equal protection of the law, pursuant to the holding of the Supreme Court of the United States in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498.In addition, defendant also requested that the indictment be dismissed on the ground that the Grand Jury was not selected at random from a fair cross-section of the community as required by section 500 of the Judiciary Law.Since these issues were similar to those raised in a pretrial motion made in People v. Best(Kings CountyInd. No. 869/78 ), pursuant to which a lengthy hearing had been held, it was agreed by both the People and defense counsel that the defendant would rely on the record adduced at the Best hearing.¹

THE HEARING

At the hearing conducted on Best's motion to dismiss the indictment against him, proof was introduced that Hispanics are considered as a distinct identifiable group by the United States Census Bureau and the Department of Labor.The validity of this classification was corroborated by the testimony of a professor of sociology that Hispanics share several characteristics as a group, e.g., a cultural background having its roots in Spain, Catholicism as the dominant religion and Spanish as a common language.

With regard to the question of whether Hispanics had been substantially underrepresented on the Grand Jury rosters over a significant period of time, the movant called a staff accountant employed by the District Attorney's office who prepared a study in connection with the claim of underrepresentation of Hispanics.In that study, it was demonstrated that while the 1970 census indicated that Hispanics comprised 14.5% of the Kings County population, only an average 3.5% of the persons on the Grand Jury rosters for the nine-year-period of 1970 to 1978 had Hispanic surnames.According to the study, an absolute disparity of 11% existed, reflecting the difference between the percentage of the particular class in the population (14.5%) and the percentage of the particular class on Grand Jury rosters (3.5%).The disparity revealed by the study was also analyzed in terms of comparative disparity, which is defined as the actual disparity (11%) divided by the proportion of the class in the population (14.5%).This resulted in a comparative disparity of 76%, signifying that Hispanics are underrepresented by 76% in relation to their proportional representation in the population of the county.

An expert statistician and sociologist employed as a consultant for the Legal Aid Society testified that the probability that the disparity had occurred by chance in a random method of jury selection was less than one in one thousand.

In response to the evidence submitted by the defendant, the People called Anthony Durso, the County Clerk and Commissioner of Jurors in Kings County, who is responsible for the drawing and impaneling of jurors.In 1968, when he became Commissioner, Kings County had a population of 3,000,000 and there were only 65,000 names in the "Master pool".In an attempt to increase the pool, the Commissioner, in 1975, began utilizing the Kings County licensed driver's list from the Commissioner of Motor Vehicles in addition to the Board of Elections list, which had been previously used (and which was supplemented by the January list of newly registered voters) so that by June, 1979, when the Commissioner testified at the hearing, there were 340,000 names in the jury pool.

Magnetic tapes containing the names on the Motor Vehicle and Board of Election lists are run through a computer and a preselected number of names are randomly chosen.²The computer then prints the names and addresses of those selected on subpoenas to qualify, which are returned to the Commissioner's office to be mechanically inserted into envelopes.Recipients of the subpoenas are summoned to appear on a definite date, about two weeks in the future, for an examination regarding their qualifications for jury service.To the extent possible, given available manpower, the Commissioner attempts to find the correct address for those summonses which are returned marked "Wrong Address", and to send follow-up letters to those who did not respond to the summons.When the recipient of the subpoena appears, and it is ascertained that he or she currently resides in Kings County, he or she is given a questionnaire to fill out which is in conformity with section 513 of the Judiciary Law.³An oral examination is then conducted to determine inter alia, the veracity of the responses.

Those persons whose answers indicate that they fail to qualify under section 510 of the Judiciary Law, or who are disqualified from serving pursuant to section 511 thereof, are rejected ⁴.The questionnaires are then marked "Q" for qualified, or "Rej" for rejected, along with the reason therefor, the date and the examiner's initials.Those who claim to be eligible for exemptions pursuant to section 512 of the Judiciary Law must see the Commissioner who determines the validity of these claims ⁵.

Those individuals found qualified to be grand jurors are then fingerprinted, pursuant to section 514 of the Judiciary Law, and become members of the general pool (see22 NYCRR 620.6).Prospective jurors are instructed to leave both the race and skin tone spaces on the fingerprint card blank; in the event they are completed, the answers are marked out, or the card destroyed and the prospective juror is required to complete a new one.This particular card is provided by the Bureau of Criminal Justice and the Commissioner is mandated to use it since it is the only one which the Division of Criminal Justice Services in Albany will process.

After the fingerprinting process is completed, the names of the qualified prospective jurors are added to the names already in the master jury pool.Each October, 7,500 names are drawn randomly from the master pool to determine those to be chosen to serve as grand jurors in the following year.These names are then placed in a small drum which is sealed.To meet the average monthly need of 92 grand jurors, the Commissioner selects 350 names at random each month and summons those people to appear.About one half of those called appear, but this is more than necessary to fill the panels.

In addition to this general overview of the Grand Jury selection process, the Commissioner gave a detailed statistical analysis of the initial phase of the process, i.e., the completion of the qualification questionnaire.The Commissioner testified that in November, 1978, a month chosen at random but nonetheless representative of an average month, his office mailed out 7,300 subpoenas requiring people to appear for juror qualification examination.Using a list of Hispanic surnames, the Commissioner determined that 1,231 of the 7,300 notices, or 16.9%, were sent to Hispanics.Of the 1,231 Hispanic recipients of the subpoenas, 294, or 24%, appeared for the qualification examination and 132 of those who appeared, or 45%, qualified.The Commissioner testified that of the 162 who failed to qualify, the majority failed to do so because of their inability to read, write and comprehend the English language.Specifically, about 90 of the 162 were rejected because they were unable to complete the questionnaire, one was disqualified for having a felony conviction, one was exempted as the sole proprietor of a business, and the remainder, approximately 70, were most if not all women, exempt upon their request because they had the responsibility of caring for young children.

In contrast, of the 6,069 nonHispanic recipients of the subpoenas, 3,154 or 52% appeared for the qualification examination and 1,884, or 60% of those appearing, qualified.

In sum, the Commissioner's study demonstrated that 31% of nonHispanics summoned, qualified (1,884 out of 6,069 summoned) and were added to the jury pool, whereas 11% of the Hispanics summoned, qualified (132 out of 1,231 summoned) and were added to the jury pool.Of the total population found qualified and added to the pool, 6.5% were Hispanic (132 out of 2,016).

DECISION OF CRIMINAL TERM

Based upon the evidence adduced at the hearing, Criminal Term (in Best) found that defendant had prevailed in meeting the first two prongs of the three-pronged test set forth in Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, supra), i.e., that Hispanics constituted a "recognizable, distinct class" and that "the procedure employed resulted in a substantial underrepresentation" of Hispanics on the Kings County Grand Jury rosters.

However,...