People v. Merkle

• Decision Date: 08 August 1988
• Citation: 143 A.D.2d 145,531 N.Y.S.2d 601
• Parties: The PEOPLE, etc., Respondent, v. Allan C. MERKLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 601

531 N.Y.S.2d 601

143 A.D.2d 145

The PEOPLE, etc., Respondent, v. Allan C. MERKLE, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 8, 1988.

John F. Middlemiss, Jr., Ronkonkoma (Louis Perrotta, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (John J. Ribeiro, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Rohl, J.), rendered February 19, 1986, convicting him of sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that he was deprived of his right to a trial by an impartial jury (U.S. Const. 6th Amend., 14th Amend.; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412; Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258). This argument is premised on his allegations that the prosecutor peremptorily challenged several prospective jurors who happened to be female.

The defendant claims that the prosecutor exercised peremptory challenges with respect to five out of six females who were included in the first seating of potential jurors, both of the females who were included in the second seating, and both of the females who remained in the third seating after another female had been excused by the court. It is noteworthy that the jury, as it was finally composed, would not have been all male but for the defendant's exercise of a peremptory challenge to a female whom the prosecutor had found to be acceptable. It is also noteworthy that when the time came for the selection of alternate jurors, with one female and five males remaining, the prosecutor did not exercise an available peremptory challenge and the female was selected to serve as an alternate.

It is also important that after the defendant had made a motion for a mistrial on the basis of the composition of the jury, the prosecutor articulated a nongender related basis for his exercise of peremptory challenges as against almost all of the prospective female jurors. Specifically, it appears that at least seven of the nine women who were subjected to peremptory challenges by the prosecution did not have any daughters and another had an adult daughter. At trial, the prosecutor explained the pattern of his peremptory challenges by indicating that,...