People v. Potter

• Decision Date: 24 March 1997
• Citation: 172 Misc.2d 409,658 N.Y.S.2d 790
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Marcella POTTER, Defendant.
• Court: New York City Court

Page 790

658 N.Y.S.2d 790

172 Misc.2d 409

The PEOPLE of the State of New York, Plaintiff, v. Marcella POTTER, Defendant.

Criminal Court of the City of New York, Bronx County.

March 24, 1997.

Robert T. Johnson, District Attorney of Bronx County (Joseph McCormack, of counsel), for plaintiff.

Marvin Ray Raskin, New York City, for defendant.

HAROLD ADLER, Judge.

This case involves some of the most volatile issues facing the criminal justice system, including matters of race, the difficulty of some courts to sustain any meaningful trial capacity and the common practice of prosecutors reducing charges on the eve or day of trial. This latter practice, sometimes resulting in the forfeiture of a defendant's right to a jury trial, is a convention often despised by the defense bar.

The defense makes an unusual and creative argument to extend Batson-like race issues to the prosecutor's motion to reduce the charges down from class "A" misdemeanors. Because defendants who are charged with misdemeanors of the class "B" level or lower are entitled only to a bench trial, not a jury trial (CPL 340.40[2]; Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 464 N.Y.S.2d 392, 451 N.E.2d 150 (1983); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 [1970] ), a prosecutor's act of reducing charges down from class "A" misdemeanors routinely denies a defendant the option of a jury trial. In an attempt to retain the option of a jury trial, the defense in the current case opposes the People's motion to reduce the class "A" misdemeanors. It argues that because the defendant here is African-American, the complainant is European-American, and many Bronx jurors are minorities, the People must provide a race-neutral reason for the reduction.

In the accusatory instrument dated June 6, 1996, the defendant was charged with Penal Law 120.00(1) (Assault in the third degree, a class "A" misdemeanor), PL 135.05 (Unlawful Imprisonment in the second degree, a class "A" misdemeanor) and PL 240.26(1) (Harassment in the second degree, a violation). On January 24, 1997, the very date this matter was set for trial, the People moved to reduce the two class "A" misdemeanors to "attempts" (PL 110.00, 120.00[1]; PL 110.00, 135.05), thereby transforming these two charges into class "B" misdemeanors punishable by a sentence not to exceed three months. See, PL 110.05(8). This court generally disapproves of reductions on the date set for trial as these can be highly prejudicial to the defense and can force them to drastically change its trial strategy. This reduction occurred in excess of seven months after the accusatory instrument was signed and well in excess of eight months after the alleged incident. However, as the new charges here are not hypothetical, illogical or impossible, the People's motion to reduce was granted subject to the court's review of the subject defense motion.

To begin with, this court wishes to note that reductions are not always beneficial to defendants. In the instant case, the defendant is a correction officer. Any guilty verdict, even on the violation, might result in loss of job and pension.

The defense's argument against reduction is purely race based. It contends that the jury pool in the Bronx is largely African-American and Hispanic-American while the judges in the court are largely European-American. As noted, the defendant is African-American and the complainant is European-American. Because the act of reducing the charges denies the defendant the option of a jury trial, the People are in effect excluding African-Americans and Hispanic-Americans from deciding the facts of the case. The People must therefore provide a race-neutral reason for the reduction or, failing to do this, the court should deny the People's motion to reduce. The defense develops this concept from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson, the Supreme Court addressed race issues regarding the selection of jurors. The Court added restrictions to the exercise by prosecutors of their peremptory challenges against members of a defendant's racial class. To succeed initially in erecting the presumption of purposeful discrimination, the defense must demonstrate (1) membership in a "cognizable racial group"; (2) the exercise of peremptory challenges by the prosecutor to exclude members of the defendant's group; and (3) "facts and any other relevant circumstances rais[ing] an inference" of a discriminatory purpose. Batson v. Kentucky, supra, at 96, 106 S.Ct. at 1723. See also, People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208 (1987). At that point the burden shifts to the prosecution to overcome the inference of purposeful discrimination with an articulate and neutral explanation for having excused those jurors.

The defense analogizes Batson with the current case, and the analogy is not without strong parallels. Batson prohibits the prosecution from systematically excluding prospective jurors of a defendant's racial group. In the current case, the reduction down from class "A" misdemeanors would exclude prospective jurors of the defendant's racial group. And the defense notes that in the current case the reduction of the charges to class "B" misdemeanors is not occasioned by a change in the factual allegations; the allegations in the accusatory instrument still support class "A" misdemeanors.

The defense asserts that because the reduction deprives the defendant of a trial by her minority peers, the People must provide an articulate and neutral explanation for the reduction. Otherwise, the court must deny the People's motion to reduce the charges. This argument flows naturally from the precepts of Batson. Indeed, its logic and theory are outwardly very impressive. However, its effect is hollowed by the fundamental differences between the selection of jurors and the right to a trial by jury--two very distinct ideas.

The precepts of Batson stem from a line of cases more than a century old, all of which pertain to the selection of jurors. In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed 664 (1880), the Supreme Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from whom members of his race have been purposefully excluded. That case laid the foundation for the notion that a jury must be selected pursuant to nondiscriminatory criteria. See also, Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 339, 50 L.Ed. 497 (1906). "The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Strauder, supra, at 308.

Distinct from the issue of the selection of jurors is the issue of the right to a trial by jury. While both issues are powerfully linked to the Constitution, they are treated differently by the courts. Since Strauder, the Supreme Court has repeatedly reviewed the application of jury selection principles to particular facts (see, Batson, at 90, footnote 13, 106 S.Ct. at 1719, footnote 13) and has refined numerous principles to ensure the proper selection of jurors. Yet, these principles have not been applied to the right to a jury.

Furthermore, in addition to the legal distinction between the right to a jury trial and the selection of jurors, the practical effect of the defense's position in this case is problematic. The defense argues that a jury in this case would be mostly minority and the judge would be European-American. However, this is speculative. The racial makeup of Bronx juries and judges is actually varied. There are well more than a minimal number of European-American jurors and minority judges in the Bronx. And not all minority jurors in the Bronx are African-American like the defendant. The precepts of Batson apply where potential jurors of the defendant's race are specifically preempted. When charges are reduced from "A" misdemeanors, all jurors--no matter what race--will be preempted.

Moreover, except sometimes in completely racially homogeneous communities, the denial of a trial by jury will always exclude members of a defendant's race from serving on the jury. Under the defense's theory, Batson principles could apply in almost every class "A" misdemeanor reduction case. There is no precedent or authority for this.

Also, it is very important to note that there is absolutely no indication here that race plays any part in the People's motion to reduce. There is nothing in law, fact or logic that would allow the court to conclude otherwise or to suggest any improper motive on this sparse record. On the contrary, prosecutors commonly reduce charges for a variety of reasons, including for legitimate trial strategy and for lack of resources. See, People v. Zimmer, 51 N.Y.2d 390, at 394, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980); People v. Foy, 155 Misc.2d 81, at 82-83, 587 N.Y.S.2d 111 (Crim.Ct.Bronx...