People v. Kern

CourtNew York Court of Appeals
Writing for the CourtALEXANDER; WACHTLER
Citation554 N.E.2d 1235,555 N.Y.S.2d 647,75 N.Y.2d 638
Parties, 554 N.E.2d 1235 The PEOPLE of the State of New York, Respondent, v. Scott KERN, Jason Ladone and Jon Lester, Appellants.
Decision Date29 March 1990

Page 647

555 N.Y.S.2d 647
75 N.Y.2d 638, 554 N.E.2d 1235
The PEOPLE of the State of New York, Respondent,
v.
Scott KERN, Jason Ladone and Jon Lester, Appellants.
Court of Appeals of New York.
March 29, 1990.

Page 648

[75 N.Y.2d 640] [554 N.E.2d 1236] Charles L. Weintraub, Susan C. Wolfe, John L. Pollok, Edward Gasthalter and Michael H. Gold, New York City, for appellants.

[75 N.Y.2d 641] Helman R. Brook, Sp. State Prosecutor (Arthur G. Weinstein and Matthew S. Greenberg, of counsel), for respondent.

[75 N.Y.2d 642] Arnold S. Cohen, for The Legal Aid Soc., amicus curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

On this appeal, defendants assert a right, through the [75 N.Y.2d 643] mechanism of the peremptory challenge, to exclude persons of a particular race from service on a criminal jury. We hold today that such racial discrimination has no place in our courtrooms and that such conduct by defense counsel is prohibited by both the Civil Rights Clause and the Equal Protection Clause of our State Constitution. Accordingly, we affirm the order of the Appellate Division, 149 A.D.2d 187, 545 N.Y.S.2d 4, upholding defendants' convictions.

I

Defendants were convicted, after a highly publicized trial, of manslaughter, and other charges arising out of their participation in an attack by a group of white teen-agers upon three black men in the community of Howard Beach in Queens. This so-called "Howard Beach incident" occurred during the early morning hours of December 20, 1986, after the three victims, Michael Griffith, Cedric Sandiford and Timothy

Page 649

[554 N.E.2d 1237] Grimes left their disabled car on the nearby Cross Bay Boulevard and walked into the Howard Beach neighborhood to seek assistance.

At the same time that Griffith, Sandiford and Grimes left their car, a birthday party was being held in Howard Beach and was attended by approximately 30 teen-agers, including defendants Kern, Lester, and Ladone, their codefendant Michael Pirone 1 and the accomplice who testified against them, Robert Riley. At approximately 12:20 A.M., Kern's girlfriend, Claudia Calogero, left the party and was driven home by Salvatore DeSimone, accompanied by Lester and a fourth youth. As DeSimone turned the corner from Cross Bay Boulevard onto 157th Avenue, Griffith, Grimes and Sandiford started to cross the street, heading towards the New Park Pizzeria. Calogero testified that three black men darted in front of the car, forcing DeSimone to stop suddenly. An argument ensued between the pedestrians and the occupants of the car. According to Calogero, Sandiford stuck his head into the car window and stared at the teen-agers. According to Sandiford's testimony, however, the occupants of the car stuck their heads out of the window and yelled "Niggers, get [out of] the neighborhood". Following that confrontation, the three men crossed the street and entered the pizzeria while the [75 N.Y.2d 644] youths continued on their way. After driving Calogero home, DeSimone, Lester and the other youth returned to the party.

Robert Riley was sitting on the steps outside the house where the party was being held when DeSimone, Lester and the other youth arrived. Lester shouted "There were some niggers on the boulevard, lets go up there and kill them". A few minutes later, a number of youths, including Kern, Lester, Ladone and Pirone, left the party to track down the three black men. DeSimone led the caravan of cars from the party to the New Park Pizzeria in his car with Lester and Ladone. Riley followed in his own car with three male teen-agers and Laura Castagna, whom Riley intended to escort home. John Saggese followed the group in his car. Although Riley did not know in which car Kern and Pirone traveled, he testified that he observed the two when the group eventually arrived at the pizzeria.

Meanwhile, at approximately 12:45 A.M., Grimes, Sandiford and Griffith left the New Park Pizzeria. At that point, the cars containing the teen-agers pulled into the parking lot and the youths, with the exception of Laura Castagna, emerged from the cars. The group, wielding bats and sticks, confronted Griffith, Grimes and Sandiford and yelled at them to get out of the neighborhood. Riley testified that Kern was banging a baseball bat on the ground as the teen-agers formed a semicircle around the three men, who, according to Riley, were each holding a knife. According to Grimes, several of the youths were carrying bats and sticks and one youth held "something that looked like an iron pipe". Sandiford testified that he did not have a weapon and that he did not observe whether Griffith or Grimes displayed any weapons. Grimes testified that he pulled out a knife and held it in front of him as the youths approached. At that point, Sandiford was struck in the back by a bat. Although Riley never saw Kern swing the bat he had been holding, he did testify that after Sandiford was struck, Riley grabbed the bat from Kern because he (Riley) could swing it "harder". As the three men fled across Cross Bay Boulevard, Riley, Kern, Ladone, Lester, Pirone and several other youths gave chase.

Griffith, Grimes and Sandiford ran in different directions. Grimes headed north on Cross Bay Boulevard and managed to escape his attackers. Sandiford was struck several times with bats and tree limbs as his assailants chanted "Niggers, get * * * out of the neighborhood". Sandiford was able to break [75 N.Y.2d 645] away from the youths and was eventually joined by Griffith as they ran down an alleyway behind several stores parallel to Cross Bay Boulevard. The two

Page 650

[554 N.E.2d 1238] men were followed by Kern, Ladone, Lester, Riley, Pirone and two other youths. The alleyway ended at a three-foot-high barricade where it intersected with 156th Avenue. Both Sandiford and Griffith jumped over the barricade and made a left turn onto 156th Avenue. The group of teen-agers followed, approximately 30 feet behind, jumped the barricade and continued the chase.

At that time, Saggese pulled up in the westbound lane on 156th Avenue, and, after clearing the barricade, Riley got into the backseat. The car followed closely behind the youths on foot, who turned right on 90th Street, following Griffith. At the end of 90th Street, a three-foot-high guardrail separated that street from the Belt Parkway, a six-lane highway which runs east and west. Shore Parkway, a service road for the Belt Parkway which also runs east and west, partially intersects 90th Street at the guardrail and leads to Cross Bay Boulevard. The Saggese car, which had pulled ahead of the youths on foot, stopped three quarters of the way down 90th Street. Lester ran to the car, grabbed a bat from Riley, and he, Riley, Kern and Ladone ran toward the end of 90th Street after Griffith. Griffith jumped over the guardrail and ran onto the Belt Parkway. When the youths reached the guardrail, Riley observed Griffith run across the three eastbound lanes of the highway, jump the center median and enter the westbound lanes where he was struck by a car driven by Dominic Blum. Griffith was killed in the accident; his body was thrown a distance of approximately 75 to 125 feet and Blum left the scene without realizing that he had hit a person. He later returned to the scene of the accident and spoke to the police.

After the youths observed Griffith being struck by a car, Lester, Kern and Ladone ran back toward 156th Avenue where they met up with two other youths. Riley, Pirone, Saggese and another youth returned in Saggese's car to the pizzeria, where they picked up Castagna and headed toward 156th Avenue.

Sandiford, who had managed to temporarily escape his assailants, was walking west on 156th Avenue when he was attacked from behind by the group of teen-agers who beat him with bats and tree limbs. Sandiford testified that he managed to grab the bat being wielded by Lester as he pleaded with Lester not to kill him. At that point, a car pulled up and, as [75 N.Y.2d 646] its occupants approached, Sandiford released the bat which Lester then swung at him, striking him in the head and causing blood to run down the back of his head. He further testified that he "fe[lt] like [his] brain * * * busted apart".

Sandiford broke away from his attackers, who continued to chase him. The chase ended when Sandiford tried to climb a chainlink fence which ran parallel to the Belt Parkway. The youths pulled Sandiford down from the fence, kicking and beating him with bats and tree limbs. Sandiford cried for help to Theresa Fisher, who was standing in the doorway of a house across the street. In response, Fisher called the police. A tape recording of her 911 call was admitted into evidence at the trial. The beating of Sandiford continued and the final attack was witnessed by George and Marie Toscano, who also called the police.

After his assailants left him, Sandiford was picked up by a police car on the Belt Parkway and driven to the site where Griffith's body was located, where he identified the body. He was later taken to the hospital and treated for his injuries.

Thereafter, defendants were arrested and indicted and Huntley hearings were conducted on the admissibility of their statements to law enforcement officials. The hearing on Lester's statements established that he was arrested and brought to the 106th Precinct on the morning of December 22, 1986. When Lester requested and was given a newspaper by a police officer, Lester read the front-page headline about the Howard Beach incident and declared "[t]his isn't what happened. It's not even close." Lester was then advised, for the first time, of his Miranda rights and gave a statement detailing his participation

Page 651

[554 N.E.2d 1239] in the crime. Questioning ceased at 1:50 P.M., when Lester was advised that his attorney had telephoned. Shortly before 2:00 P.M., Lester was seated uncuffed in a room adjoining the squad room. Lester motioned to Assistant District Attorney Wolk, who...

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206 practice notes
  • Caston v. Costello, No. 97CV7623 (ARR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 11, 1999
    ...New York caselaw and N.Y. Const. art. I, § 1). However, "no citizen has a right to sit on any particular petit jury." People v. Kern, 75 N.Y.2d 638, 652, 555 N.Y.S.2d 647, 654, 554 N.E.2d 1235, 1242 (1990). More importantly, there can be no rule of law requiring that the federal Constitutio......
  • People v. Taylor, 2017–12281
    • United States
    • New York Supreme Court Appellate Division
    • July 8, 2020
    ...917 N.Y.S.2d 39, 942 N.E.2d 248, quoting People v. Allen, 86 N.Y.2d 101, 108, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ; see People v. Kern, 75 N.Y.2d 638, 651–652, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ). When a party excludes a juror simply because of discrimination, both the adverse party and the ......
  • Lown v. Salvation Army, Inc., No. 04 Civ. 1562(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2005
    ...N.Y.2d 172, 190, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996) (citation omitted)). Plaintiffs must allege state action. See People v. Kern, 75 N.Y.2d 638, 653, 554 N.E.2d 1235, 555 N.Y.S.2d 647 (1990) ("[O]ur State equal protection provision, like the Federal equal protection right, is directed......
  • Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14–cv–7250 (KBF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 9, 2015
    ...be premature, citing Fortress Bible Church v. Feiner, 734 F.Supp.2d 409 (S.D.N.Y.2010), Tartikov, 915 F.Supp.2d 574, and People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 (1990). As to Fortress Bible Church and Tartikov, the fact that district courts have in certain circumsta......
  • Request a trial to view additional results
206 cases
  • Caston v. Costello, No. 97CV7623 (ARR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 11, 1999
    ...New York caselaw and N.Y. Const. art. I, § 1). However, "no citizen has a right to sit on any particular petit jury." People v. Kern, 75 N.Y.2d 638, 652, 555 N.Y.S.2d 647, 654, 554 N.E.2d 1235, 1242 (1990). More importantly, there can be no rule of law requiring that the federal Constitutio......
  • People v. Taylor, 2017–12281
    • United States
    • New York Supreme Court Appellate Division
    • July 8, 2020
    ...917 N.Y.S.2d 39, 942 N.E.2d 248, quoting People v. Allen, 86 N.Y.2d 101, 108, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ; see People v. Kern, 75 N.Y.2d 638, 651–652, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ). When a party excludes a juror simply because of discrimination, both the adverse party and the ......
  • Lown v. Salvation Army, Inc., No. 04 Civ. 1562(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2005
    ...N.Y.2d 172, 190, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996) (citation omitted)). Plaintiffs must allege state action. See People v. Kern, 75 N.Y.2d 638, 653, 554 N.E.2d 1235, 555 N.Y.S.2d 647 (1990) ("[O]ur State equal protection provision, like the Federal equal protection right, is directed......
  • Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14–cv–7250 (KBF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 9, 2015
    ...be premature, citing Fortress Bible Church v. Feiner, 734 F.Supp.2d 409 (S.D.N.Y.2010), Tartikov, 915 F.Supp.2d 574, and People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 (1990). As to Fortress Bible Church and Tartikov, the fact that district courts have in certain circumsta......
  • Request a trial to view additional results

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