People v. Jupiter

• Decision Date: 19 December 1994
• Parties: The PEOPLE, etc., Respondent, v. Shawn JUPITER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 426

620 N.Y.S.2d 426

210 A.D.2d 431

The PEOPLE, etc., Respondent, v. Shawn JUPITER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1994.

Philip L. Weinstein, New York City (Michael E. Gerber, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Carol Teague Schwartzkopf, and Quentin Moore, of counsel), for respondent.

Before BRACKEN, J.P., and ALTMAN, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered September 29, 1992, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that he was denied his constitutional and statutory right to be present during a side-bar voir dire of two prospective jurors regarding their knowledge of the events, witnesses, and attorneys involved in the case (see, People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784). At the outset, we note that the Court of Appeals has recently held that the right to be present at a side-bar voir dire is statutory and not constitutional in nature (see, People v. Sprowal, 84 N.Y.2d 113, 615 N.Y.S.2d 328, 638 N.E.2d 973). Thus, to the extent the defendant argues that his constitutional rights were violated, that contention is without merit.

As to the first side-bar, a prospective juror approached the bench when the potential jurors were asked whether they knew the defendant, defense counsel, or the prosecutor. An off-the-record discussion was held with counsel present. It is apparent from the record that this venireperson was reseated in the jury box and subsequently responded in open court, during the court's voir dire, "like I stated, I know the defense attorney". The venireperson was peremptorily challenged by the prosecutor in the defendant's presence and was dismissed. Under the circumstances, where the substance of the side-bar conference was subsequently disclosed in the defendant's presence and the venireperson was peremptorily challenged, the defendant's presence at the side-bar inquiry would not have contributed to the proceeding and his absence did not have a substantial effect on his ability to defend (see, People v. Mills, 200 A.D.2d 771, 607 N.Y.S.2d 124; People v. Sprowal, supra; People v. Sloan, supra ).

As to the second side-bar voir dire, the prospective juror was excused without objection by defense counsel after an off-the-record discussion with the attorneys present. Unlike the situation with the other venireperson, there is no indication in the record of the substance of the discussion with this juror. The record is insufficient to permit appellate review and we decline to remit the case to the Supreme Court, Kings County, for a reconstruction hearing (see, People v. Neal, 205 A.D.2d 711, 614 N.Y.S.2d 295; People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786).

The defendant further contends that he was denied the right to a trial by a jury of his choice when the Supreme Court rejected two of his peremptory challenges and seated the individuals as a juror and an alternate juror over his objection. During the fourth round of jury selection, defense counsel exercised his remaining two peremptory challenges against two white individuals. The prosecutor raised a Batson claim because defense counsel had used 13 of his 15 challenges to exclude whites (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). After initially attempting to justify his challenges as "simply a matter of statistics", defense counsel conceded that the People had established a pattern of discrimination and the court requested an explanation for the challenges.

During the court's voir dire of the first prospective juror, she had indicated that her brother worked for the Drug Enforcement Administration. Defense counsel did not question her about her brother's employment. According to defense counsel, he was under the mistaken impression that her brother was an Assistant District Attorney, but when he finally realized that the brother was "a DEA agent" and that he had not questioned her in that regard, he decided to exercise a peremptory challenge. The prosecutor requested clarification as to why defense counsel did not question her about any bias she may have had when he thought her brother was an Assistant District Attorney, but would have questioned her if he had realized her brother was with the Drug Enforcement Administration. Instead of giving an explanation, defense counsel stated that the prospective juror had been the victim of a burglary.

Counsel gave several different reasons for challenging the second prospective juror. Initially, he indicated that the challenge was based on consultation with his client. After the court pointed out that neither a defendant nor defense counsel is entitled to exercise peremptory challenges on the basis of race, counsel stated, "it's not so much as racially motivated as it is based upon [the prospective juror's] contacts with neighborhoods in Brooklyn. He does live in Brooklyn Heights. In that manner, it worries the Defense that he may not have--Could I have a moment, your Honor?" After a pause and a comment by the prosecutor, defense counsel then offered as an explanation the fact that this second prospective juror had also been the victim of a burglary.

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