People v. Muriale

• Court: New York Supreme Court
• Writing for the Court: MICHAEL R. JUVILER; Black's
• Citation: People v. Muriale, 526 N.Y.S.2d 367, 138 Misc.2d 1056 (N.Y. Sup. Ct. 1988)
• Decision Date: 09 March 1988
• Parties: The PEOPLE of the State of New York, v. Cosmo MURIALE, Defendant.

Page 367

526 N.Y.S.2d 367

138 Misc.2d 1056

The PEOPLE of the State of New York, v. Cosmo MURIALE, Defendant.

Supreme Court, Criminal Term Kings County, Part 29.

March 9, 1988.

Daniel Saunders (Barbara D. Underwood, Peter A. Weinstein, Victor Barall, Brooklyn, on the brief) for Elizabeth Holtzman, Dist. Atty., Brooklyn, for the People.

Maurice H. Sercarz, Brooklyn Heights, for defendant.

DECISION REGARDING USE OF PEREMPTORY CHALLENGES BY THE DEFENSE

MICHAEL R. JUVILER, Justice.

I. THE QUESTION PRESENTED

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court of the United States reaffirmed that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor at a criminal trial from using peremptory challenges to exclude black potential jurors solely on the basis of race or on the assumption that black jurors will be unable to consider impartially the State's case against a black defendant; reversing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the Court held that a defendant can establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. If a prima facie case is made out, the prosecution has the burden of showing racially neutral reasons for excluding the black jurors. Batson expressly left open the question whether these rules apply to the defense. This court must now decide that question.

The defendant has been charged with two counts of murder in the second degree: intentional murder and depraved-indifference murder. The charges arose out of an incident that happened on the early morning of May 28, 1986, in the Coney Island section of Brooklyn. The People allege that the defendant and three other white youths, acting in concert, got into an argument with a black youth, who fled on his bicycle, and that they followed him in cars, shouted racial slurs, and assaulted him with fists, feet, a knife, and a baseball bat, causing his death.

Selection of the jury is scheduled to begin on March 14. The prosecution has asked the court to prohibit the defense from using peremptory challenges against black persons on the jury panel solely because of their race, and to require the defense to establish a racially neutral reason for excluding blacks if a pattern of discrimination appears. The defendant maintains that because his lawyer is not an agent of the State like the prosecutor, counsel should be allowed to use peremptory challenges without any restrictions or explanations, in accordance with CPL § 270.25, which provides 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." To avoid delay during the selection of the jury, the issue is being litigated before the trial.

II. BACKGROUND--THE LAW OF NEW YORK

In People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982), cert. denied 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322, the Court of Appeals, in reliance on Swain v. Alabama and the language and history of CPL § 270.25, held that the prosecution may not be made to explain its reasons for excluding minority jurors in a particular case. In McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated and remanded 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), appeal dismissed, No. 84-2026 (2d Cir.1986), the United States Court of Appeals held in the same case that the prosecutor's use of peremptory challenges at one trial to exclude minority jurors violated the defendant's Sixth-Amendment right of the accused to an impartial jury and his right to equal protection of the laws, and that the prosecutor should have been required to give an explanation for exercising peremptory challenges in an apparently discriminatory manner.

Batson resolved the conflict between these two decisions and nullified CPL § 270.25 as it applies to prosecutors in those circumstances. The specific question that this court must now address is whether in the absence of legislative amendment the court may go beyond the language of the CPL as it applies to the defense. ¹

I find that the rules applicable to the prosecution should be applied to the defense. In doing so I am guided by decisions to that effect in other jurisdictions, the reasoning of Batson and other decisions of the Supreme Court of the United States, the public policy of New York against racial discrimination in the selection of juries, and the right of each side in a criminal trial in this State to an impartial jury drawn from a representative panel.

III. DECISIONS IN OTHER JURISDICTIONS

Virtually every court that has examined the issue has held that any restrictions on using peremptory challenges to exclude jurors of a certain race should apply equally to the prosecution and the defense. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110; Commonwealth v. Hutchinson, 395 Mass. 568, 481 N.E.2d 188; Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495; State v. Neil, 457 So.2d 481 (Fla.); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Cal.). These decisions, all rendered before Batson, were based on the respective State constitutions and statutes. A United States Court of Appeals based the same result on the Sixth-Amendment right to an impartial jury. See Booker v. Jabe, 775 F.2d 762 (6th Cir.), cert. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860, vacated sub nom Michigan v. Booker, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705, upon remand 801 F.2d 871 (6th Cir.), cert. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860.

Since Batson, courts in at least three other jurisdictions have addressed this issue. In State v. Gilmore, 103 N.J. 508, 511 A.2d 1150, the court relied on the New Jersey constitution in holding that the prosecutor could not use peremptory challenges to remove jurors because of "presumed group bias" and strongly suggested that the same result would apply to the defense; subsequently, a trial court applied the restriction to the defense. See State v. Alvarado, 221 N.J.Super. 324, 534 A.2d 440 (Superior Ct. Union Co.). In Chew v. State, 71 Md.App. 681, 527 A.2d 332 (Md.App.), cert granted 311 Md. 301, 534 A.2d 369, a court of appeals in Maryland remanded the case to the trial court for a ruling on the prosecutor's use of peremptory challenges, and in a thorough opinion indicated that the ruling in Batson logically would apply to both sides.

In a rare departure from this trend, a trial court in Alabama, at a trial of two leaders of the Ku Klux Klan for the murder of a black teenager, denied the prosecutor's motion to prohibit the defense from exercising peremptory challenges in a racially discriminatory manner. See N.Y. Times, Feb. 2, 1988, p. 19, col. 5.

IV. THE RATIONALE OF BATSON AND SIMILAR CASES, AND THE PUBLIC POLICIES OF NEW YORK STATE

Although peremptory challenges existed at common law and have been traditionally considered a necessary part of a jury trial, they do not have a constitutional foundation. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578; United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78; Walter v. People, 32 N.Y. 147; People v. Lobel, 298 N.Y. 243, 82 N.E.2d 145; People v. Doran, 246 N.Y. 409, 159 N.E. 379; People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (2nd Dept.). They are to be distinguished from challenges for cause, which are inherent in due process and the guarantee of a fair and impartial jury.

In New York, defendants had no right to peremptory challenges until 1873. See People v. Thompson, supra. Currently, CPL § 270.25 limits the number of peremptory challenges, depending on the seriousness of the crime charged, and compels multiple defendants to share and agree on their challenges. Peremptory challenges by the defense may be regulated reasonably without violating a defendant's constitutional rights, and their exercise by the defense may have to yield to more compelling public interests. In the absence of resolution by the Legislature since Batson, the weighing of these interests must be undertaken by the courts.

A. Public confidence in justice.

In its decision in Batson regarding discrimination by prosecutors, the Supreme Court of the United States cited reasons that apply equally to discrimination by the defense. One of them is the interest of the courts in preserving public confidence in justice:

"By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race." 476 U.S. at 99, 106 S.Ct. at 1724.

The Court found that the injury from discrimination in the selection of the jury affects "the entire community. Selection procedures that purposely exclude black persons from juries undermine public confidence in the fairness of our system of justice." Id. at 87, 106 S.Ct. at 1718. In Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199, 205, a case dealing with the retroactivity of Batson, the Court said: "Our holding [in Batson ] ... strengthens public confidence in the administration of justice."

The Court had recognized the same values before Batson. In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739, for example, the Court had found:

"Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another...