People v. Miller

• Decision Date: 22 November 1999
• Citation: 698 N.Y.S.2d 881
• Parties: The PEOPLE, etc., respondent, v. Emery MILLER, appellant.
• Court: New York Supreme Court — Appellate Division

Page 881

698 N.Y.S.2d 881

The PEOPLE, etc., respondent, v. Emery MILLER, appellant.

Supreme Court, Appellate Division Second Department, New York.

Nov. 22, 1999.

Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin, J.), rendered January 5, 1998, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During voir dire, the defense counsel exercised a peremptory challenge to four white prospective jurors, and the prosecutor raised a reverse-Batson objection (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50). The defense counsel offered facially race-neutral explanations, including his assessment that one of the challenged prospective jurors was "a little overweight", and "seemed a little unhealthy", and she might be unable to sit through a week or more of testimony. Thereafter, the court denied the defendant's peremptory challenge to that prospective juror, finding that the explanation was pretextual. We agree.

The racially-motivated use of peremptory challenges by either the defense or the prosecution violates the Equal Protection Clause of both the State and Federal Constitutions (see, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50; People v. Thomas, 210 A.D.2d 515, 620 N.Y.S.2d 478).

The Supreme Court properly determined that the explanation proffered by the defense counsel was a mere pretext offered in an attempt to conceal a racially-discriminatory intent (see, People v. Hawthorne, 80 N.Y.2d 873, 587 N.Y.S.2d 600, 600 N.E.2d 231; People v. Jupiter, 210 A.D.2d 431, 620 N.Y.S.2d 426; People v. McCoy, 210 A.D.2d 508, 620 N.Y.S.2d 463; People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904). The determination of the Supreme Court is entitled to great deference on appeal and will not be disturbed where, as here, it is supported by the record (see, Hernandez v. New York, supra; ...