People v. Moten

• Decision Date: 12 July 1993
• Parties: The PEOPLE of the State of New York v. Richard MOTEN, Defendant.
• Court: New York Supreme Court

Page 940

603 N.Y.S.2d 940

159 Misc.2d 269

The PEOPLE of the State of New York v. Richard MOTEN, Defendant.

Supreme Court, Queens County,

Criminal Term.

July 12, 1993.

Richard A. Brown, Dist. Atty. by Debra Lynn Pomodore, Kew Gardens, for plaintiff.

Joseph G. Sulik, Kew Gardens, for defendant.

DAVID GOLDSTEIN, Justice.

ISSUES

The novel issues concern the procedure to be followed during jury selection, where a Batson [Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69] or Kern [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] challenge is made and it appears that there may be a developing discriminatory pattern, particularly where no race-neutral, nonpretextual reason is given. In other words, should prospective jurors, who may have been the subject of discrimination, be retained during future rounds, separate from sworn jurors, in the event their services are needed as a result of what appears to be a developing pattern of discrimination? A further issue relates to the appropriate remedial action to be taken when, on subsequent rounds, the existence of discrimination becomes clear, i.e., where a Kern challenge is sustained, in what order are such jurors to be seated, especially where those discriminated against in earlier rounds have been retained and the composition of the jury, without the effects of the discrimination, may be recreated?

Two rounds of jury selection are at issue here, as a result of which there developed a clear pattern of discrimination by defendant, directed against whites.

FACTS

(a) Jury Selection--Round 1

In round 1, the People exercised 3 peremptory challenges directed against an African-American, Caucasian and Hispanic. Defendant then challenged all four of the remaining whites, which resulted in the selection of four jurors, a gentleman of Indian extraction, an Asian and two African-Americans.

At this point, the district attorney raised a Batson- Kern objection. Giving defendant the benefit of any doubt, the Court found no pattern of discrimination at that time. Nevertheless, it did afford defense counsel an opportunity, if he wished, to set forth, on the record, his reasons for excusing those jurors. In this way, the basis for his action could be preserved while the jurors were still present. Although he did not have to do so, counsel voluntarily set forth his reasons. As to two of the four jurors, the reasons were wholly inconsistent with the facts, sufficient to conclude that the reason, although, on the surface, race-neutral, could be a pretext, possibly designed to mask a discriminatory motive.

As to juror No. 8, counsel stated he did not like his response to the question as to burden of proof and the presumption of innocence. However, juror No. 8 had actually given the correct answer, that, if he had to vote before having heard any proof, he would vote "not guilty" as a result of the presumption and the failure of the People to satisfy their burden. In fact, counsel used this answer to inquire of the others who had responded incorrectly. No other reason or basis was proffered.

As to juror No. 12, it was argued that she had witnessed a homicide and, therefore, she was unacceptable. However, at no time did the juror state that she had witnessed a homicide; rather, she said she heard about one in her neighborhood--that she saw two men crossing the street and, later the same day, heard about a homicide and assumed it was the same two men. The examination clearly established her desire to serve, which was not shaken by prodding or counsel's suggestion that he knew juror No. 12's boss and that she probably knew him (defense counsel) as well. She was emphatic that she did not. Although she initially sought to be excused, this related to the time away from her job as a real estate broker.

As to the remaining jurors, No. 14 was excused and No. 13, who was Caucasian, was seated as juror No. 5. At that time, defense counsel proclaimed in substance that, since he had now chosen a white, there could be no Kern challenge in subsequent rounds. The Court disagreed, observing that the selection of what might appear to be a token representative, standing alone, would not automatically obviate a reverse Batson or Kern challenge (see, People v. Jenkins, 75 N.Y.2d 550, 557, 555 N.Y.S.2d 10, 554 N.E.2d 47; People v. Childress, 81 N.Y.2d 263, 598 N.Y.S.2d 146, 614 N.E.2d 709). The propriety of any such challenge would depend upon events as they developed in the course of jury selection.

In terms of any discrimination, the Court found insufficient proof to sustain a clear discriminatory pattern at this stage, albeit counsel's conduct was suspicious. The Kern challenge was reasserted by the district attorney, but was denied. Inasmuch as the grounds offered with respect to Nos. 8 and 12 were pretextual, no reason was given for the peremptory challenges. Nevertheless, as a safeguard against what appeared to be a possible emerging pattern of discrimination, Nos. 8 and 12 were directed to remain in the rear of the courtroom, separate from the balance of the panel and from the five sworn jurors. This assured their presence in the event, in future rounds, it became clear that defense counsel was improperly discriminating against Caucasians.

In doing so, the Court advised that it would not hesitate to seat those jurors (Nos. 8 and 12) if what was suspicious, in terms of discrimination, in the first round became evident in future rounds. In fact, counsel was cautioned several times before proceeding with voir dire in the second round, that there could be a need for affirmative action here

since, in the second round, there were 12 whites and only 2 blacks on the panel.

(b) Jury Selection--Round 2

In the second round, defendant challenged Nos. 6 and 7 for cause, which was denied. Mr. Cronley (No. 6) had an infant at home and claimed he helped his wife by caring for the child during the early morning feeding. Since he worked at night, when his wife was home to care for the child, there was no basis to excuse him. His situation was no different than that of any other married juror with a young child, whose spouse could care for the infant. The challenge to Mr. Hartenstein (No. 7) related to his health and his prior bypass surgery. However, he stated this would not interfere with his serving as a juror. During voir dire, neither attorney asked any questions as to his health.

After defendant peremptorily challenged Nos. 6 and 7, the district attorney renewed her reverse Batson and Kern challenge, which was denied as premature, once again, the Court concluding that the additional challenges did not establish a pattern of discrimination so as to require defendant to set forth his reasons, especially in view of the selection of three white jurors, namely, Nos. 1, 2 and 4 in the second round. As it did in the first round, the Court permitted defense counsel to set forth the basis for his challenges, which he declined to do.

Jury selection then continued, eight jurors having been agreed to by both sides, albeit this was not yet announced. Defendant challenged both Caucasian jurors, Nos. 8 and 10, retaining Nos. 9 and 11, both of whom were African-Americans. In doing so, defense counsel, in Freudian fashion, jumped the gun in announcing that he was challenging Nos. 8, 10 and 12, although, at that time, the parties had not yet considered juror No. 12. The fact that and manner by which this was done is an additional factor to reflect counsel's apparent goal of removing as many Caucasians as he could.

Upon renewal of the People's Kern challenge, the Court found a sufficient pattern of discrimination, aimed at the exclusion of whites, so as to require defense counsel to set forth, on the record, race-neutral reasons for his peremptory challenges. The reasons given as to Nos. 6 and 7 were the same as those advanced on the challenge for cause, namely, that Cronley would rather be home with his infant to care for the child at night, and Hartenstein had bypass surgery at one time, although we don't know when, and he himself stated that this would not interfere with his service as a juror. As to No. 8, counsel stated that he had prior jury service in a Federal case and, it was claimed, the difference in procedure between the two systems would make him unacceptable as a juror in a State trial.

Although the reasons appeared to be pretextual, giving defense counsel the benefit of any doubt, the Court proceeded with the selection of the remaining two jurors, both of whom were white. Defendant challenged both peremptorily, whereupon the prosecutrix renewed her Kern challenge, pointing to what clearly appeared as a pattern of deliberate exclusion of whites through both rounds of jury selection.

Defendant's challenge to No. 12 was based upon the disclosure that she had been the victim of a crime, which, according to defense counsel, was a violent crime, a mugging. To the contrary, the Court had inquired of Ms. Adler whether the "mugging" involved actual physical injury or was a pocketbook snatch. Her response was that no injury was sustained. Inasmuch as defendant did not apply the same standard to other prospective jurors who were black, permitting on the jury African-Americans who had been victims of a crime, or whose relatives had been victims of a crime, it was concluded that the reason given to reject No. 12 was a mere pretext, with a clear purpose to conceal an improper discriminatory intent.

As to No. 13, defense counsel expressed the view that the juror felt somewhat apprehensive around guns, didn't like guns and would not like to touch or handle one. While this would not disqualify her from service, counsel expressed a desire not to have on the jury a person with those general feelings,

                dislikes or fears.   Notwithstanding that he did not similarly inquire as to this subject with any other prospective juror, on

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