People v. McCray

• Decision Date: 13 June 1980
• Citation: 429 N.Y.S.2d 158,104 Misc.2d 782
• Parties: The PEOPLE of the State of New York v. Michael McCRAY.
• Court: New York Supreme Court

Page 158

429 N.Y.S.2d 158

104 Misc.2d 782

The PEOPLE of the State of New York v. Michael McCRAY.

Supreme Court, Criminal Term, Kings County, Part 28.

June 13, 1980.

Eugene Gold, Dist. Atty., Kings County, for the People; Sharon Litwin, Asst. Dist. Atty., Brooklyn, of counsel.

Leon Polsky, Legal Aid Society, New York City, for defendant; Joel Deckler, Brooklyn, of counsel.

JAMES G. STARKEY, Judge.

During jury selection in the captioned case, the defendant (a black male), by his counsel, moved for a mistrial on the ground that the prosecutor had consistently excused, by peremptory challenges, black and Hispanic candidates. At the time the motion was made, seven black candidates and one Hispanic had been excused in that fashion. That conduct, it was urged, constituted improper use of peremptory challenges to exclude potential jurors on the ground of race. The prosecution denied excusing jurors on the ground of race and the motion was denied.

The defense then moved, in the alternative, for a hearing and the opportunity to examine the prosecutor under oath concerning her intent and motives in the exercise of the challenges. That motion was also denied.

Thereafter, the trial proceeded to a conclusion and on April 28, 1980, the defendant was convicted of robbery in the first and second degrees. This decision is written to set forth the applicable law and the basis for the rulings referred to above.

The threshold problem confronted by the defense argument is that historically, the basis for the exercise of peremptory challenges is immune from inquiry (See Swain v. Alabama, 380 U.S. 202, 219-20, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892)). See also CPL § 270.25(1) ¹.

It is true, as urged by the defense, that there is authority for the proposition that "it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State . . ." (Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954); See also Castaneda v. Partida, 430 U.S. 482, 492, 97 S.Ct. 1272, 1278-79, 51 L.Ed.2d 498 (1977)). Perhaps more to the point, there is also authority for the proposition that the basis for the exercise of peremptory challenges is not totally immune from inquiry and that the systematic exclusion of all persons of a specific race or color from trial juries solely on the basis of race or color is, similarly, prohibited (See Swain v. Alabama, supra, 380 U.S. at 223-24, 85 S.Ct. at 837-38).

But the defense argument blurs some vital distinctions and lumps together two wholly different propositions. It is one thing to say that the law prohibits discrimination in jury selection based solely on race and quite another to say it prohibits challenging all candidates of the same race, religion or national origin as the defendant. ² In the latter case, at least presumptively, the challenges are based not on race, religion or heritage, but on the ground of potential affinity with a defendant who shares the same background a time honored basis for the exercise of peremptory challenges (See Swain v. Alabama, supra 380 U.S. at 220-21, 85 S.Ct. at 835-36). ³

In light of the presumption of regularity and the historic immunity from inquiry concerning the use of peremptory challenges, 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. "The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury . . . The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result . . . would establish a rule wholly at odds with the peremptory challenge system as we know it" (Swain v. Alabama, supra at 222, 85 S.Ct. at 837).

Further, any other rule would present obvious practical questions concerning the administration of justice. If the defense were entitled to a hearing based solely on a pattern of excusals in a single case, logic and fairness would require that the prosecution have the same right ⁴ (See Commonwealth v. Soares, --- Mass. ---, 387 N.E.2d 499, 517, n. 35 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 906, 583 P.2d 748, 765, n. 29 (1978)).

Predictably, hardly a trial would pass without both sides being entitled to such an inquiry. ⁵ Given potential affinity as the likely and reasonable explanation, such a rule would be, on its face, both inappropriate and unacceptable in its consequences to the expeditious and orderly administration of justice.

While the defense has not explicitly urged that potential affinity "group affiliation", as it is sometimes called is also an objectionable basis for the exercise of peremptory challenges, this court is aware that some authority exists for that proposition (See Commonwealth v. Soares, --- Mass. ---, 387 N.E.2d 499 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); People v. Kagan, 101 Misc.2d 274, 420 N.Y.S.2d 987 (Sup.Ct.N.Y.Cty.1979)).

With all due deference to the courts which decided ...