People v. Hecker

• Decision Date: 30 November 2010
• Citation: 942 N.E.2d 248,15 N.Y.3d 625,917 N.Y.S.2d 39
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph HECKER, Appellant. The People of the State of New York, Respondent, v. Anthony Guardino, Appellant. The People of the State of New York, Respondent, v. Eric Hollis, Appellant. The People of the State of New York, Respondent, v. Jamel Black, Appellant.
• Court: New York Court of Appeals Court of Appeals

917 N.Y.S.2d 39

15 N.Y.3d 625

942 N.E.2d 248

The PEOPLE of the State of New York, Respondent,

v.Joseph HECKER, Appellant.

The People of the State of New York, Respondent,

v.Anthony Guardino, Appellant.

The People of the State of New York, Respondent,

v.Eric Hollis, Appellant.

The People of the State of New York, Respondent,

v.Jamel Black, Appellant.

Court of Appeals of New York.

Nov. 30, 2010.

Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Ellen Stanfield Friedman and Sylvia Wertheimer of counsel), for respondent in the first above-entitled action.

Peluso & Touger, LLP, New York City (David Touger of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Amyjane Rettew of counsel), for respondent in the second above-entitled action.

Wachtell, Lipton, Rosen & Katz, New York City (Meredith L. Turner of counsel) and Office of the Appellate Defender (Richard M. Greenberg and Daniel A. Warshawsky of counsel) for appellant in the third above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz, Amyjane Rettew and Gina Mignola of counsel), for respondent in the third above-entitled action.

Jamel Black, appellant pro se in the fourth above-entitled action.

William G. Kastin, New York City, and Lynn W.L. Fahey for appellant in the fourth above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Seth M. Lieberman, Leonard Joblove and Victor Barall of counsel), for respondent in the fourth above-entitled action.

New York Civil Liberties Union Foundation, New York City (Andrew L. Kalloch, Corey Stoughton and Arthur Eisenberg of counsel), and Association of the Bar of the City of New York (Karen A. Newirth of counsel) for New York Civil Liberties Union and another, amici curiae in the fourth above-entitled action.

OPINION OF THE COURT

CIPARICK, J.

In Batson v. Kentucky, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used by a party to exclude potential jurors on the basis of race ( see 476 U.S. 79, 94-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986] ). These four appeals, once again, center on the application of this now-familiar three-step Batson protocol. At step one, "the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges" ( People v. Smocum, 99 N.Y.2d 418, 420, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003] ). Once a prima facie case of discrimination has been established, the burden shifts, at step two, to the nonmoving party to offer a facially neutral explanation for each suspect challenge ( see Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991]; People v. Allen, 86 N.Y.2d 101, 104, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ). At the third step, the burden shifts back to the moving party ( see Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275; People v. Payne, 88 N.Y.2d 172, 183-184, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ) to prove purposeful discrimination and "the trial courtmust determine whether the proffered reasons are pretextual"

[942 N.E.2d 253, 917 N.Y.S.2d 44]

( Allen, 86 N.Y.2d at 104, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).

With this framework in place, in People v. Hecker, we are asked to resolve whether Supreme Court erred in concluding at step three that the reasons offered by defense counsel to exclude one Asian-American prospective juror were pretextual. In People v. Guardino and People v. Hollis, the issue presented is whether the defendants in those cases failed to meet their burden in establishing a step one prima facie case of purposeful racial discrimination. Finally, in People v. Black, we are called upon to determine whether Supreme Court's step three acceptance of the race-neutral reasons proffered by the People in peremptorily challenging three prospective jurors has record support.

I.

A. People v. Hecker

A New York County grand jury indicted Hecker for one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), a class B felony, for allegedly selling three twists of crack cocaine to an undercover police officer.

Hecker proceeded to trial and jury selection commenced in June 2008. At the beginning of jury selection, Supreme Court advised the parties that they each would be given 10 minutes to voir dire the prospective jurors following the court's preliminary examination, but that if either party desired more time to speak with the jurors they should seek permission from the court. Supreme Court's preliminary questions ostensibly consisted of two parts. The first part pertained to the prospective jurors' biographical information while the second part focused on the jurors' legal backgrounds, contact with the criminal justice system, and prior jury service. Supreme Court instructed the prospective jurors to familiarize themselves with the court's questionnaire and those selected from the venire for questioning would be asked to reference the question number and provide the pertinent information.

Jury selection took place over the course of three rounds. During the first round of jury selection, Supreme Court seated 18 panelists for questioning. The parties selected three of these panelists to serve as jurors. Of the remaining 15 panelists, Supreme Court excused five of them for cause while the partieseach utilized five of their 15 peremptory challenges.¹ Defense counsel spoke to 12 of the 18 panelists on the first round. Out of the five panelists peremptorily challenged by defense counsel, she had not questioned three of them. Of these three, one of them had not been addressed by the People either.

In the second round of jury selection, Supreme Court similarly seated 18 prospective jurors and later excused four of them for cause. Two of the remaining 14 panelists seated during this round, Chan and Lee, both of Asian descent, are relevant to this appeal. The following colloquy, in response to the preliminary juror questionnaire, ensued between Chan and Supreme Court:

"[chan]: My name is ... Chan. I live with my husband in lower Manhattan [ sic ] and for over 16 years. Number four is my husband is working. I'm not.

"the court: What type of work does your husband do?

"[chan]: My husband working a technician. My education, I have a business

[942 N.E.2d 254, 917 N.Y.S.2d 45]

administration in Associate Degree. Number six, no. Number seven, yes.² Number eight, no. Number nine is no. Number ten is no. Number eleven is no. Number twelve is no. Number 13 and 14 is no.

"the court: Thank you."

When it was Lee's turn to answer Supreme Court's questionnaire, he responded narratively to the questions, noting that he was a first-year law student at New York University.

Once Supreme Court completed its preliminary questioning, the parties conducted their voir dire of the second round panelists. Defense counsel questioned only five of the 18 panelists. At the point in time defense counsel had questioned three of these panelists, Supreme Court advised her that she had "one minute left" to complete her voir dire. In her remaining time, defense counsel asked two panelists, including Lee, whether he would hold it against Hecker if he did not testify at trial. Lee responded to this line of questioning as follows:

"I understand it's his legal right. However, I havesome trepidation on whether in the role as a juror I could draw the distinction between fact and law, especially given my legal training. I'm a free-thinking individual with an opinion of what the law is or ought to be. So I'm concerned that unconsciously whether that legal opinion might influence.

"So, while I would consciously attempt to force myself from the recognition of what the law is, I think ... unconsciously."

Supreme Court intervened at this juncture and the following colloquy between it and Lee occurred:

"the court: I'm failing to understand what you are saying.

"[lee]: I understand as a juror I'm only supposed to evaluate questions of fact. To me that means questions of credibility. So, if the defendant were not to testify, that would, to me, be some indicator of credibility. However, as a matter of law, the defendant need not self incriminate or testify against himself.

"the court: That's a basic constitutional protection.

"[lee]: Right.

"the court: ... Are you saying you have some difficulty accepting the mandates of the United States Constitution which presumes any person accused of a crime of being innocent?

"[lee]: No, your Honor.

"the court: Are you saying that you would not be able to, as a person who is aspiring to be an attorney before the bar, afford an individual that presumption and not follow the Court's direction that the People have the burden of proving a person accused of a crime beyond a reasonable doubt?

"[lee]: No, your Honor, I'm not saying that. I'm saying, as an academic matter, I solely recognize that. And I will strive as humanly as possible and as consciously as possible to draw that distinction. However, I have no control over whatever unconscious biases I develop."the court: What sort of unconscious biases would you anticipate?

[917 N.Y.S.2d 46, 942 N.E.2d 255]

[lee]: Just as a matter, I would have some question as to why the defendant wouldn't want to testify.

"the court: I'm certain as a law student you can imagine a host of reasons why a defendant might elect not to testify. The simplest of course is putting the People to their proof. He may not be particularly articulate and a host of other reasons.

"The question is, can you, in your mind, as you said, as an intellectual exercise, put those thoughts out of your mind in doing the job that you would be sworn to do as a juror which is to decide the case on the facts, determine whether the People have proven the case beyond a reasonable doubt, as is their

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