People v. Hameed

• Decision Date: 05 June 1996
• Citation: 644 N.Y.S.2d 466,666 N.E.2d 1339,88 N.Y.2d 232
• Parties: , 666 N.E.2d 1339 The PEOPLE of the State of New York, Respondent, v. Basheer HAMEED, also known as James Dixon York, and Abdul Majid, also known as Anthony LaBorde, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 466

644 N.Y.S.2d 466

88 N.Y.2d 232, 666 N.E.2d 1339

The PEOPLE of the State of New York, Respondent, v. Basheer HAMEED, also known as James Dixon York, and Abdul Majid, also known as Anthony LaBorde, Appellants.

Court of Appeals of New York.

June 5, 1996.

Certiorari Denied Jan. 6, 1997. See 117 S.Ct. 704.

[88 N.Y.2d 233] [666 N.E.2d 1340] Mark B. Gombiner, Brooklyn, and Kunstler and Kuby, New York City (Ronald L. Kuby, of counsel), for appellants.

[88 N.Y.2d 234] Richard A. Brown, District Attorney of Queens County, Kew Gardens (Andrew L. Zwerling, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

The two legal issues emanating from this murder conviction after a third jury trial are whether (1) the Hearing Justice, at a postjudgment Batson remittal (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) to inquire into the prosecutor's peremptory jury strikes, was required to give the defense a full adversarial cross-examination opportunity as to the trial prosecutors who, as desired by the Hearing Justice, gave their Batson explanations under oath; and (2) the Trial Justice's discussion with the jury foreperson alone concerning some sequestration details violated defendants' right to presence or to counsel.

After the remittal hearing and findings were completed at Supreme Court, the Appellate Division ruled on the entire appeal, found no errors and affirmed the judgments of conviction. A Judge of this Court granted leave to appeal and we now affirm.

I.

On the morning of April 16, 1981, Police Officers Richard Rainey and John Scarangella pulled over a van. The two defendants immediately left the vehicle, approached the patrol car and fired into the car, hitting both officers. Officer Rainey survived to testify and Officer Scarangella died two weeks after the shooting.

At their first trial, defendants were convicted of attempted murder in the second degree for the shooting of Officer Rainey. The jury was unable to reach a verdict on the murder in the second degree count relating to Officer Scarangella and a mistrial was declared in that respect. The second trial, on the murder charge alone, also resulted in a mistrial. At the third trial in 1986, the one at issue here, both defendants were convicted of the murder of Officer Scarangella.

The Appellate Division initially affirmed the convictions (178 A.D.2d 546). Then, upon reargument, the Appellate Division vacated the affirmance, ordered the appeal held in abeyance, and remitted the case to Supreme Court, Queens County, for a Batson hearing (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra ), at which the prosecution would have to justify its peremptory challenges with race-neutral reasons (183 A.D.2d 847, 584 N.Y.S.2d 94).

A different Justice presided at the hearing than at the trial. To assist the court's task and responsibility in connection with this hearing, the court directed the prosecutors to testify under oath; the defense was likewise to present its witnesses under oath. The court foreclosed traditional cross-examination of those testifying and, instead, offered the parties the opportunity to submit questions in writing, which the court would then pose to the witnesses.

Three witnesses testified on the prosecution side: the two Assistant District Attorneys who tried the case for the People, and one prosecution investigator. Before any testimony was taken, the prosecutors turned over all written voir dire notes and materials to the defense voluntarily. While defense counsel submitted written questions to be asked of the investigator, they refused to do so with respect to the prosecuting attorneys. As to them, the defense team insisted on an opportunity for full, customary, lawyer-to-witness oral cross-examination. The court denied this request.

The lead trial prosecutor testified as to his race-neutral reasons for the peremptory challenges of 12 African-American jurors and two African-American alternate jurors. As to four of these, the defense conceded before the hearing court that the proffered reasons were "arguably race-neutral." The precise reasons proffered and whether the prosecution and defense carried their respective burdens are not at issue here. Rather, the hearing court's decision not to allow the defense to cross-examine the testifying prosecutors is the first and primary prong of this appeal.

In a 66-page opinion containing findings of fact and conclusions of law after a hearing held intermittently over three months, the court concluded that the prosecutor presented race-neutral explanations that were nonpretextual. The court found that the lead prosecutor's testimony was credible, "straightforward and nonevasive." The Appellate Division's ultimate upholding of the guilty verdicts--now before us--sustained the hearing court's findings and rejected the cross-examination argument as "without merit" (212 A.D.2d 728, 729, 622 N.Y.S.2d 811).

II.

Defendants urge that the hearing court's refusal to allow customary, trial-type cross-examination of the prosecutors at the postverdict Batson hearing deprived them of due process of law and their Sixth Amendment right to confront witnesses (U.S. Const. 6th, 14th Amends; see also, N.Y. Const., art. I, § 6). As to the due process claim, they argue that a full-blown evidentiary hearing is necessary to ensure a fair proceeding and to satisfy the goals of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra. They further argue that a Confrontation Clause violation also derives from the refusal to allow cross-examination at a Batson inquiry. We disagree with both contentions.

This Court and the United States Supreme Court have settled on a three-step procedure governing trial court review of claimed discrimination in the exercise of peremptory challenges as part of jury selection (see, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542; People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173; see also, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395, affg. 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621). In cases such as the present one, the defense must set forth a prima facie basis of discrimination, at which point the prosecution must come forward with facially race-neutral reasons for its challenged peremptory strikes (People v. Payne, supra ). The Trial Judge must ultimately determine whether the proffered reasons are pretextual, the burden of persuasion resting on the challenger to the peremptory strike (id.).

In none of the many cases interpreting the Batson protocols have either this Court or the Supreme Court ever imposed any particular form of procedure for considering Batson challenges. Instead, the actual conduct of the inquiry has been placed within the sound discretion and molding of the trial courts (see, People v. Hernandez, 75 N.Y.2d 350, 357, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395, supra; Batson v. Kentucky, supra, 476 U.S., at 100, 106 S.Ct., at 1725), as long as the substantive principles are satisfied (People v. Payne, supra; People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173, supra; see also, United States v. Clemons, 941 F.2d 321, 323-324 (5th Cir.)).

We are satisfied that as a general proposition examination under oath of any individuals in these matters is not compelled. Indeed, the vast majority of courts in other jurisdictions that have specifically been asked to impose such a requirement have declined to do so (see, e.g., United States v. Jiminez, 983 F.2d 1020, 1024 (11th Cir.), cert. denied 510 U.S. 925, 114 S.Ct. 330, 126 L.Ed.2d 276; United States v. Tindle, 860 F.2d 125, 130 (4th Cir.), cert. denied 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1038; United States v. Garrison, 849 F.2d 103, 106 (4th Cir.), cert. denied 488 U.S. 996, 109 S.Ct. 566, 102 L.Ed.2d 591; Gray v. State, 317 Md. 250, 258-260, 562 A.2d 1278, 1282-1283; State v. Jackson, 322 N.C. 251, 257-258, 368 S.E.2d 838, 842, cert. denied 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1027; State v. Powers, 92 Ohio App.3d 400, 409, 635 N.E.2d 1298, 1304, cert. denied 513 U.S. 951, 115 S.Ct. 366, 130 L.Ed.2d 319; but see, e.g., Williams v. State, 767 S.W.2d 872, 874 [Tex.App.]. We agree with the Supreme Court of North Carolina that "[t]he presiding judges are capable of passing on the credibility of prosecuting attorneys without the benefit of cross-examination" (State v. Jackson, supra, 322 N.C., at 258, 368 S.E.2d, at 842; cf., People v. Allen, 86 N.Y.2d 101, 105, 629 N.Y.S.2d 1003, 653 N.E.2d 1173, supra [postverdict Batson hearing limited to the proffer of race-neutral reason by prosecutor and opportunity for defendant to rebut].

In fact, the major doctrinal conflict in this area is not about allowing cross-examination relating to the exercise of peremptory challenges. Rather, the tension is between "those [courts] that recommend an adversary proceeding of some type [and] those that permit the prosecutor's explanation to be received in camera and ex parte" (Gray v. State, 317 Md. 250, 257, 562 A.2d 1278, 1281, supra; compare, United States v. Tucker, 836 F.2d 334, 340 [7th Cir] [in camera proffer permissible], cert. denied sub nom. Bell v. United States, 488 U.S. 855, 109 S.Ct. 143, 102 L.Ed.2d 115, and United States v. Davis, 809 F.2d 1194, 1201 [6th Cir] [same], cert. denied 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740, with United States v. Thompson, 827 F.2d 1254, 1258-1259 [9th Cir] [adversarial proceeding necessary in adjudicating Batson claims]. This Court has never sanctioned an ex parte procedure and has already resolved the question in favor of an open court exchange between the competing camps, with appropriate opportunity for input from both sides to make a proper record and to assist the trial court in its singular...