People v. McCray

• Decision Date: 14 December 1982
• Parties: , 443 N.E.2d 915 The PEOPLE of the State of New York, Respondent, v. Michael McCRAY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 441

457 N.Y.S.2d 441

57 N.Y.2d 542, 443 N.E.2d 915

The PEOPLE of the State of New York, Respondent,

v. Michael McCRAY, Appellant.

Court of Appeals of New York.

Dec. 14, 1982.

Courtenay L. Wiltshire, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Katherine N. Rose, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

CPL 270.25 states that: "A peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged from service." This right to peremptory challenges has been exercised by prosecutors and defendants in this State pursuant to the same or similar statute for over 100 years (see Walter v. People, 32 N.Y. 147). In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the Supreme Court determined that a prosecutor is not required to disclose his reasons for excusing prospective jurors in a particular case on the mere allegation by the defense that peremptories are being used to exclude minority jurors. We find nothing in our State Constitution or statutes which compels a departure from this holding of the Supreme Court. ¹

Defendant was convicted of robbery in the first and second degrees for his part in the November 15, 1978 gunpoint robbery of Philip Roberts, a student at Pratt Institute. After Roberts had withdrawn money from an automatic bank teller machine, the defendant and several companions pushed him into the vestibule of an apartment building and took his money. Defendant was identified by Roberts several weeks later when, while Roberts was bei driven by police around the neighborhood where he was accosted, he spontaneously picked out the defendant from a group of four individuals standing on a street corner.

During jury selection, the defense moved for a mistrial, claiming that the prosecutor had unlawfully used peremptory challenges to exclude jurors on the basis of race. In the alternative, the defense moved for a hearing to inquire into the prosecutor's use of her peremptory challenges. In pursuing these motions, the defense pointed out that 8 of the 11 peremptory challenges exercised by the prosecutor had been used to exclude all of the blacks and the only Hispanic prospective juror drawn. Nevertheless, these defense motions were denied. The court relied upon Swain v. Alabama (supra ) in concluding that it is inappropriate to inquire into a party's motives solely on the basis of the manner in which peremptory challenges have been exercised in a single case. On the appeal from defendant's conviction, the Appellate Division affirmed, without opinion. Defendant now argues to this court, inter alia, that the trial court committed reversible error in denying his motion for a mistrial or for a hearing to inquire into the prosecutor's intentions and motives in exercising peremptory challenges to exclude certain jurors.

The issue of minority representation on criminal juries has been the subject of several decisions by the Supreme Court. These decisions draw a critical distinction between the jury pool, which is the group of prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that is ultimately chosen to serve. The Sixth Amendment requires that the jury pool be selected from a representative cross section of the community (Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690), and distinctive groups in the community may not be systematically excluded from the pool. Once the jury pool is selected, however, prospective jurors may then be excluded through the exercise of cause challenges and peremptory challenges. The challenge for cause removes those jurors who either admit to actual bias or those who admit to circumstances from which the law will infer an overwhelming potential for bias. The peremptory challenge, in contrast, is a challenge for which no reason need be assigned. This challen enables either the prosecutor or the defense to exclude prospective jurors who may harbor subtle prejudices which may be sensed by counsel but which are not explicitly revealed by the prospective juror on voir dire. ² It is also designed to permit counsel to remove prospective jurors who counsel may have alienated during the course of questioning on voir dire.

In Swain v. Alabama (supra ), the Supreme Court clearly determined that the prosecutor's motives for striking particular jurors may not be subjected to scrutiny simply upon the assertion by the defense that peremptories are being used to exclude minorities. The court noted that only if it can be established that the prosecutor's office is using peremptory challenges systematically to exclude minorities from juries over a period of time will a prima facie case of discrimination be made out. The decision in Swain upheld the traditional model for jury selection, which "assumes that impartiality is best realized by first choosing a pool of jurors from the community at large, excusing those clearly biased, and then permitting the parties to excuse additional jurors who, in their view, are less likely than others to provide a fair trial" (Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md L Rev 337, 359).

In urging a reversal in this case, defendant argues that this court should reject the holding of the Supreme Court in Swain on the basis of the provisions of our State Constitution. Defendant would have this court overturn the present system of limited peremptory challenges by requiring the prosecutor to shoulder the burden of assigning and proving justifiable reasons for his exercise of these challenges whenever there is a statistically supportable allegation that the prosecutor is removing prospective jurors on the basis of their status as minority members of the community. The defendant, in effect, would require the prosecutor to prove that a prospective juror's racial biases, whether based upon group affinity or otherwise, would interfere with the attainment of a fair and impartial verdict before that juror could be excused. We decline to ado this position for it would convert the peremptory challenge system into a system based solely upon challenges for cause. Indeed, we find no persuasive reason for departing from our present method of jury selection.

A system which would require counsel to prove that a prospective juror harbors racial, sexual or religious prejudices that could interfere with the attainment of a fair and just verdict would succeed in eliminating only the most blatant biases from the jury. To begin with, we must recognize that it is the sad reality of our times that predisposition and bias may, in some individuals, be based upon racial, religious or sexual status. At the extreme end of the spectrum, those who admit to such prejudices or admit to membership in groups from which such prejudices may readily be inferred, obviously should be disqualified from sitting on juries where these prejudices could interfere with the attainment of a fair and just verdict. For example, fundamental fairness dictates that a member of the Ku Klux Klan be disqualified from sitting on a jury in a case in which a black man is accused of assaulting a white. These individuals can adequately be eliminated through the challenge for cause. Just as dangerous to the attainment of justice, however, is bias on the part of jurors which is not quite as overt in speech or behavior. While the questioning that takes place on voir dire is perfectly suited to ferret out and eradicate blatant and admitted bias from the jury, it is simply unlikely to disclose certain subtle and hidden biases which could prevent the jury from rendering a fair and impartial verdict. Several reasons for the inadequacy of voir dire for this purpose have been identified (see Saltzburg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representations, 41 Md L Rev 337, 355). First, jurors may be reluctant to admit their prejudices before spectators or others present in the courtroom during the voir dire. Second, certain prospective jurors may evade full disclosure of their prejudices in an effort to avoid being struck from the jury. Finally, other prospective jurors may simply be unaware of the existence of certain biases or prejudices they may harbor. A system of jury selection in which reasons must be assigned for the removal of individual jurors seriously hampers the eliminati of these biases from the jury. The inadequacy of relying upon voir dire to filter out all potential biases based upon group affinity is exacerbated by the reluctance of some Trial Judges to permit extensive, time-consuming voir dire examination.

In this vein, it has long been recognized that one who discriminates "cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discrimination practices in ways that are devious, by methods subtle and elusive--for we deal with an area in which 'subtleties of conduct * * * play no small part' " (Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581; see, also, Imperial Diner v. State Div. of Human Rights, 52 N.Y.2d 72, 77, 436 N.Y.S.2d 231, 417 N.E.2d 525). In order to effectively meet this problem the usual and more demanding standards of proof have been reduced in cases where the object of the law is to eliminate discrimination or bias (Matter of Holland v. Edwards, supra ). In the jury selection process that rule is served by the peremptory challenge which permits an experienced attorney to eliminate a juror who he believes might be biased against his case in instances where the potential bias cannot be disclosed or articulated to the degree necessary to establish a challenge for cause.

We further note that inherent in relying upon the cause challenge to eradicate certain...