People v. Piermont

• Court: New York County Court
• Writing for the Court: JOHN CAREY; Rosato
• Citation: People v. Piermont, 143 Misc.2d 839, 542 N.Y.S.2d 115 (N.Y. Cty. Ct. 1989)
• Decision Date: 08 May 1989
• Parties: The PEOPLE of the State of New York, v. Christopher PIERMONT, Defendant.

Page 115

542 N.Y.S.2d 115

143 Misc.2d 839

The PEOPLE of the State of New York, v. Christopher PIERMONT, Defendant.

Westchester County Court.

May 8, 1989.

Carl A. Vergari, Dist. Atty., Keary Downey, Asst. Dist. Atty., for the people.

John M. Perone, White Plains, for defendant.

JOHN CAREY, Justice.

Rarely if ever has a court, during jury selection, disallowed a peremptory challenge already made, in order to prevent its use for racial discrimination. This is such a case.

BACKGROUND AND FINDINGS OF FACT

Defendant, a white male, is charged with attempted murder in the second degree, assault in the first degree (three counts), robbery in the first degree (two counts) and grand larceny in the fourth degree, all against a black male, as well as criminal possession of a weapon in the third degree. Defense counsel asked several prospective jurors whether they would agree that a person, male or female, subjected to unwanted forcible sexual advances, might react strongly. Counsel also asked several panel members if they believed in a right of self defense. In that context a novel Batson ¹ issue arose on May 5, 1989, requiring immediate decision by the court. Fortunately the weekend of May 6-7 has provided time for research, analysis and reflection.

A panel of forty prospective jurors was provided on May 4th. Five of them were excused on consent following private discussions with the court and counsel in defendant's presence. After questioning on voir dire, one more was excused on consent and another for cause. That left thirty-three on the panel, including only three black members, all of whom were peremptorily challenged by defendant without any showing that the ethnicity they share with the alleged victim would mar their impartiality.

The first black juror challenged, referred to here as # 1, had requested a private discussion, at which she expressed concern about being sequestered, being a single parent with an 11-year old child. She said another adult lives in the same home but gets home from work late. She was in the first group chosen by lot to sit in the jury box for voir dire, during which neither sequestration arrangements nor any other subject was explored in significant depth with her. She was excused along with nine white jurors who were challenged peremptorily from among the first group.

The second and third black jurors (# 2 and # 3) peremptorily challenged were in the second group chosen for questioning. They were not excused when court was adjourned at the end of the day on May 5th. Nor were any of the peremptorily challenged white jurors from the second group excused that day. After # 3 was challenged, the court, joined by the prosecutor, declared the existence of a Batson situation. The court here confirms its having found a prima facie case of purposeful discrimination in the exercise of peremptory challenges by the defense. ² It therefore became the burden of the defense to show racially neutral and non-pretextual reasons for the challenges.

Following a private exchange of views with both lawyers in defendant's presence, the court called upon defense counsel for explanations of his grounds for peremptorily challenging # 2 and # 3. # 2, also a woman, had described herself at the beginning of voir dire as a Yonkers resident who works at Ciba-Geigy, with a high school education, whose husband is in the moving business, with three children (ages 21, 17 and 9), a 17-year Westchester resident living in a rented home, doing volunteer work at her church and at a school, and who likes to sew and travel. She was not extensively questioned by either the prosecutor or defense counsel, who gave as reasons for his challenge that the brevity of her answers showed her to be passive, docile and not interested in being a juror.

# 3, a man, had sought a private meeting to tell how he had been a crime victim four times and how, as a thirteen-year part-time ambulance volunteer working with law enforcement personnel, he might give more credence to a police witness than to a civilian, but would try to keep an open mind. On voir dire, he also mentioned his and his wife's jobs, his high school education, his six-year old son, 37-year residence in Westchester and his Emergency Medical Treatment training. When defense counsel reopened the matter of the relative credibility of police and civilians, # 3 stated clearly that he would scrutinize a police witness the same as any other. Defense counsel explained his peremptory challenge of # 3 on the ground that his privately expressed views on police credibility were more to be believed since # 3 must have been under peer pressure when answering in the presence of his fellow jurors. No effort had been made by the defense during voir dire to explore the difference between # 3's initial and later expressed views.

The court concluded the discussion with counsel on May 5 by reserving decision on the sufficiency of the defense explanations under Batson and its progeny and on what steps the court would take if not satisfied with those explanations. After much study, the court has concluded that the explanation as to # 2, while racially neutral, was pretextual, and her challenge is disallowed. She will be seated as the ninth sworn juror when the second group of prospective jurors is returned to the court room this morning.

The third challenge, which would have eliminated the last of the three black persons from the jury but for the court's present action as to # 2, while not constituting "cause," ³ is found to be racially neutral and non-pretextual, and it will stand unless the defense concludes that it should be withdrawn, in which case # 3 will become the tenth sworn juror. It would be ideal if there were equal numbers of black and white jurors, given what the court has heard on voir dire about the facts of this case. For there to be no black jurors would be shameful to say the least, especially if the defendant were responsible. One black juror is far from sufficient but better than none, and two would be better yet, but whether this jury will have one or two black jurors is for the defense to decide, and that forthwith.

CONCLUSIONS OF LAW

1) STATE ACTION, IF REQUIRED FOR BATSON TO APPLY, IS PRESENT.

With great respect to the views of Justice Peter Rosato, who wrote at length on Batson issues in Holtzman v. Supreme Court, 139 Misc.2d 109, 526 N.Y.S.2d 892 (Sup.Ct.West.Cty.1988), this court differs on two points. First, state action appears not to be required in New York in order for Batson to apply to defense challenges, since article I, § 11, of the New York Constitution goes beyond the federal prohibition against racial discrimination when it forbids "discrimination ... by any other person or by any firm, corporation, or institution." People v. Muriale, 138 Misc.2d 1056, 526 N.Y.S.2d 367 (Sup.Ct.Kings Cty.1988) ; People v. Gary M., 138 Misc.2d 1081, 526 N.Y.S.2d 986 (Sup.Ct.Kings Cty.1988); People v. Davis, 142 Misc.2d 881, 537 N.Y.S.2d 430 (Sup.Ct.Bronx Cty.1988). ⁴

The second point on which this court differs with Justice Rosato is on whether state action occurs upon defense counsel's exercise of peremptory challenges. He expressed "the view ... that the State cannot be held responsible for the conduct complained of merely because the Judges are required to grant the peremptory challenge once it is...