People v. Irizarry

• Decision Date: 18 September 1990
• Citation: 165 A.D.2d 715,560 N.Y.S.2d 279
• Parties: , 59 USLW 2204 The PEOPLE of the State of New York, Respondent, v. David IRIZARRY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 279

560 N.Y.S.2d 279

165 A.D.2d 715, 59 USLW 2204

The PEOPLE of the State of New York, Respondent, v. David IRIZARRY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Sept. 18, 1990.

Before KUPFERMAN, J.P., and ELLERIN, WALLACH and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.) rendered July 15, 1989 which convicted defendant of burglary in the second degree and sentenced him to a prison term of 8 years to life, unanimously reversed, on the law, and the case remanded for a new trial.

Defendant's conviction arises from the burglary of his aunt's apartment, and his guilt was established by overwhelming evidence at trial. The sole claim on appeal concerns a violation of defendant's equal protection rights by the prosecutor's use of peremptory challenges to exclude women from the jury.

During the first round of jury selection, the prosecutor exercised peremptory challenges against all five women jurors who were not otherwise excused from this group. As soon as the prosecutor exercised challenges against these women, defense counsel noted "I would like the record to reflect the assistant has excused all the remaining females on the panel, just in case there is a pattern that is developing, all females would be excused by the prosecution." In response, the prosecutor disclaimed any intentional pattern, and asserted that he would have accepted the one woman that defense counsel had successfully challenged for cause. Of the second round of 16 prospective jurors, five were women. Of these five, three were peremptorily challenged by the prosecutor and one by the defense, while one was selected for the jury. Defense counsel noted the prosecutor's peremptory challenges to women for the record. At the conclusion of these two rounds, the twelve regular jurors and the first alternate had been selected. The first prospective juror called during the third round, a woman, was selected as the second alternate. In sum, the jury consisted of 11 men and 1 woman, and one of two alternates was a woman.

Defense counsel moved for a mistrial based on the prosecutor's exclusion of women from the jury, relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. The trial court held a hearing on the motion prior to the commencement of the trial. The court ruled that women were a "cognizable group" for Batson purposes and that defendant, a man, had standing to raise the claim. The court then found that defendant had made out a prima facie case of improper discriminatory use of peremptory challenges, and required the prosecutor to give his reasons for exercising his peremptory challenges in this manner. The prosecutor offered specified reasons for his challenges to each of the nine women jurors he had challenged. The trial court made no findings of fact from the bench regarding the prosecutor's use of his peremptory challenges, and without elaboration or further comment denied the defendant's motion for a mistrial.

Five months later, and after conclusion of the trial, the court issued a lengthy written decision on the mistrial motion (published at 142 Misc.2d 793, 536 N.Y.S.2d 630.) In that opinion, the court found that only two of the nine peremptory challenges of women jurors appeared pretextual, and upon holding that "the failure to justify on grounds independent of gender two of nine challenges does not warrant a finding of improper use of peremptories", formally denied the motion for a mistrial ( supra at 818-819, 536 N.Y.S.2d 630.)

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, the Supreme Court held that a defendant has a right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria, on the basis of the Equal Protection Clause of the Fourteenth Amendment to the United States constitution. Although the issue of whether Batson applies to gender-based discrimination has not yet been squarely addressed by the Supreme Court, the People concede that the trial court correctly held that these principles apply to the improper use of peremptory challenges to exclude women from a petit jury. The Equal Protection clause restricts government action based on gender and to withstand constitutional challenge, gender-based distinctions are subject to a "strict scrutiny" analysis (see, e.g., Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397.) We agree that under such scrutiny, the Batson principles prohibiting discrimination in jury selection should be applied to gender-based peremptory challenges to jurors.

We find that the trial court also correctly held that defendant, a man, has standing to challenge gender discrimination against female jurors. As the Supreme Court stated in Batson:

Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try.... [B]y denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. (...