People v. James

• Decision Date: 17 December 2002
• Citation: 99 N.Y.2d 264,784 N.E.2d 1152,755 N.Y.S.2d 43
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERICK JAMES, Also Known as ISSAC DELAY, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY JONES, Also Known as RAY ANTHONY BROWN, Appellant.
• Court: New York Court of Appeals Court of Appeals

99 N.Y.2d 264

784 N.E.2d 1152

755 N.Y.S.2d 43

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TERICK JAMES, Also Known as ISSAC DELAY, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY JONES, Also Known as RAY ANTHONY BROWN, Appellant.

Court of Appeals of the State of New York.

Argued November 13, 2002.

Decided December 17, 2002.

Legal Aid Society, New York City (Richard Joselson and Andrew C. Fine of counsel), for appellant in the first above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Deborah L. Morse and Sylvia Wertheimer of counsel), for respondent in the first above-entitled action. Legal Aid Society Criminal Appeals Bureau, New York City (Amy Donner and Andrew C. Fine of counsel), for appellant in the second above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Sylvia Wertheimer and Deborah L. Morse of counsel), for respondent in the second above-entitled action.

Chief Judge KAYE and Judges LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

SMITH, J.

The issue in both of these cases is whether the Batson (Batson v Kentucky, 476 US 79 [1986]) challenges were appropriately preserved. Because they were not, we affirm the orders of the Appellate Division upholding defendants' convictions.

People v James

On October 24, 1996, an off duty corrections officer observed defendant attempting to break into the officer's car. Following a confrontation, the officer held the defendant at gunpoint until police arrived.

Defendant was indicted for attempted criminal possession of a weapon in the second degree. The defense sought to persuade the jury that defendant suffered from a mental defect precluding him from forming the requisite intent. During jury selection, he raised a Batson challenge, arguing that the People's challenge of five of six African-American women was an equal protection violation. In seeking to make out a prima facie case, the defense attorney named four African-American women the prosecutor had previously struck from the panel. The defense then focused on the fifth woman, Bemejam, a social worker and substance abuse counselor, who had been peremptorily challenged, stating:

"Judge, at this time I am making a Batson challenge on behalf of my client. This is now—Mr. Jaffe [the prosecutor] kicked off Miss Nicholas who is a Black female. Miss Freeman [sic] on the last round was a Black female. Alice Newton is a Black female. Jacqueline Accoo is a Black female and now Miss Benejam [sic], and I am asking him to give a reason why he is kicking her off. She said she could be fair. She has no problems. She doesn't have any family in law enforcement. She didn't say much at all."

In response to this challenge, the prosecutor indicated he did not want social workers or nurses on the jury.¹ After hearing the People's explanation, the court ruled that there was no Batson violation. With no further word or objection by the defendant, jury selection continued.

Defendant was convicted of attempted criminal possession of a weapon in the second degree and sentenced to a determinate prison term of six years. On appeal he argued that his equal protection and due process rights were violated by the prosecutor's peremptory challenges and the trial court's disposition. The Appellate Division affirmed with two Justices dissenting. The majority held that the defendant's Batson challenge was to one juror only—Bemejam, not as to all jurors as the dissenters contended. One of the dissenting Justices granted leave to appeal. We affirm.

People v Jones

On March 9, 1997, defendant Anthony Jones and two other men robbed an individual outside a Manhattan grocery store using a razor. Two weeks later defendant attempted to rob another individual outside the same store. Three store employees chased defendant until the police apprehended him.

Defendant was indicted for one count of robbery in the first degree and one count of robbery in the second degree based on the March 9 incident, and one count of attempted robbery in the third degree based on the March 27 incident.

During jury selection, defendant raised a Batson challenge, arguing that the People struck an African-American female during the first round of jury selection and two African-American males during the fourth round.

In seeking to make out a prima facie case, the defense stated:

"Your Honor, I'll exercise a Batson at this point. Your Honor, let me make the record that on the first panel, your Honor, Mr. Snyder [prosecutor] excluded juror number ten, Francis Tuckedt, a black woman; Wilson Nau, a black man was excused [for cause by the court]. Then in the second panel, a black man, Pierre Noel the People exercised a peremptory. Now another black man, Caviness, People exercise peremptory. At this point I think it's the prosecutor's burden to show that this isn't race based."

The prosecutor explained his reasons for challenging each juror. As to Caviness, the prosecutor stated that he overheard him making comments during the defense's voir dire, that when he struck Tuckedt, he kept another black woman, and finally that Noel expressed problems with the police in the past.²

The court rejected the Batson challenge, stating it "accepts there are non race based reasons for the exercise of peremptories by the People." Thereafter, the defendant made no further objection concerning jury selection.

Defendant was convicted of robbery in the first degree, robbery in the second degree and attempted robbery in the third degree and was sentenced accordingly. On appeal, the Appellate Division rejected defendant's contention that the trial court had improperly failed to mention Tuckedt as part of the Batson challenge, and held that the challenge pertained only to the two male jurors in the fourth round. In affirming the conviction, the Court stated:

"It is, however, clear from the record that no claim as to her was made when she was peremptorily challenged nor during the remainder of questioning in the first pool. Not until questioning the fourth pool of prospective jurors and defendant's objection to the prosecutor's use of a peremptory against Caviness was F.T. mentioned and then only as part of a pattern which, upon closer examination, did not exist. At no time did defendant state that F.T.'s removal from the panel was itself discriminatory. An unarticulated claim is an unpreserved claim." (284 AD2d 46, 49-50 [2001].)

A Judge of this Court granted leave to appeal, and we now affirm.

Discussion

In making a Batson challenge, the moving party has the initial burden of establishing that the other side is using peremptory strikes to remove a cognizable racial³ group and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race (Batson v Kentucky, 476 US at 96; People v Childress, 81 NY2d 263, 266 [1993]). "There are no fixed rules for determining what evidence will * * * establish a prima facie case of discrimination" (People v Bolling, 79 NY2d 317, 323-324 [1992]). "[A] party asserting a claim under Batson * * * should articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed" (Childress at 268 [citation omitted]). Proof sufficient to make a prima facie showing shifts the burden of going forward to the other party, but "`the ultimate burden of persuasion' must be carried by the person alleging the intentional discrimination * * *" (People v Hernandez, 75 NY2d 350, 355 [1990] [citation omitted]).

In the second step, after the moving party has established a prima facie case, the nonmoving party must give a race neutral reason for each and every person challenged in step one. If a defendant does not specifically question a particular strike, the prosecutor is not required to provide an explanation for it (see People v Manigo, 165 AD2d 660, 662

[1st Dept 1990]). "Although the * * * race neutral[] reason for exercising a peremptory challenge need not rise to the level of a challenge for cause * * *, it must be legitimate and not merely a pretext for discrimination * * *" (People v Allen, 86 NY2d 101, 106 [1995] [citations and internal quotation marks omitted]). Once the prosecutor gives race neutral reasons for peremptory challenges, the issue of whether a prima facie case has been made is moot (Hernandez v New York, 500 US 352, 359 [1991]).

In step three, the moving party may contend that the race neutral reasons given are pretextual. "When defendant challenges as pretextual the People's explanation as to a particular juror, the inquiry has become factual in nature and moves to step three. Unlike step two, step three permits the trial court to resolve factual disputes, and whether the prosecutor intended to discriminate is a question of fact * * *" (Allen at 110 [citation omitted]). The court then determines if the reasons given are pretextual.

Turning to the cases before us, in James, although the defense attorney named four other women in alleging a pattern and a prima facie case, it is clear that the defense challenged only Bemejam when she stated "and now Miss Benejam [sic], and I am asking [the prosecutor] to give a reason why he is kicking her off. She said she could be fair. She has no problems. She doesn't have any family in law enforcement. She didn't say much at all." If defendant intended to challenge all five prospective jurors, as he now alleges for the first time on appeal, rather than solely challenging Bemejam, he should have expressed that contention. Since he did not, this issue is unpreserved.

The defense attorney in Jones, in seeking to make out a prima facie case, named four individuals, three that the People struck with peremptory challenges during voir dire and one that was removed by the court for cause. From the wording used by the defense, it is...