People v. Richie

• Decision Date: 18 December 1995
• Citation: 217 A.D.2d 84,635 N.Y.S.2d 263
• Parties: The PEOPLE, etc., Respondent, v. Michael RICHIE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

635 N.Y.S.2d 263

217 A.D.2d 84

The PEOPLE, etc., Respondent, v. Michael RICHIE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 18, 1995.

Daniel L. Greenberg, New York City (Robert S. Dean and Philip L. Weinstein, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Thomas S. Burka, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, FRIEDMANN and KRAUSMAN, JJ.

BRACKEN, Justice Presiding.

During the process of jury selection, once an objection pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, has been registered, the trial court must make at least one, and as many as three determinations:

1. whether the proponent of the Batson objection has made a prima facie showing of discrimination by adverse counsel in his or her exercise of peremptory challenges,

2. whether adverse counsel has, in response to the Batson objection, furnished nondiscriminatory explanations for his or her challenges, and

3. whether the proponent of the Batson challenge has carried his or her burden of proving purposeful discrimination.

In the present case, we focus on the third component of the tripartite analysis noted above, which has been adopted as a matter of Federal constitutional law in the recent case of Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834; see also, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173.

During jury selection, the defense counsel was called upon to provide nondiscriminatory explanations for his peremptory challenges to prospective juror number three, prospective juror number five, prospective juror number seven, and prospective juror number ten.

With respect to prospective juror number three, the defense counsel noted that this man had told of his aunt having been "slugged over the head". Counsel also noted that, in his opinion, this juror, as a "small landlord", would have a tendency to commiserate with the complaining witness, a "small businessman".

With respect to prospective juror number five, the defense counsel noted that this man had served on a jury in a criminal case which terminated as the result of a plea agreement. This experience, counsel believed, "could have * * * affected his outlook".

With respect to prospective juror number seven, the defense counsel noted that this man had been the victim of a robbery, as had been the complaining witness. The defense counsel also noted that this prospective juror had a family member who was employed in the Department of Correction, and that he had served on a jury three times.

With respect to prospective juror number ten, the defense counsel expressed the viewpoint that the neighborhood in which this juror resided, Marine Park, was "oriented toward law enforcement".

The defendant now argues that, as to the prospective jurors numbered three, five, and seven, the Supreme Court improperly overrode his peremptory challenges. We agree.

In Purkett v. Elem, 514 U.S. ----, 115 S.Ct. 1769, supra, the prosecutor in a State court criminal trial had asserted, in response to a Batson challenge (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, supra ) that he had exercised peremptory challenges against two black men because one had "long curly hair" and another had "a mustache and a goatee type beard" (Purkett v. Elem, supra, 514 U.S. at ----, 115 S.Ct. at 1770). After his Batson claim had been rejected in the State courts (see, State v. Elem, 747 S.W.2d 772 [Mo.], the defendant in Purkett filed a petition for a writ of habeas corpus in Federal District Court. The District Court declined to grant the writ. The Eighth Circuit Court of Appeals reversed and directed that the writ be granted (Elem v. Purkett, 8th Cir., 25 F.3d 679), and the Supreme Court, in turn, reversed the order of the Circuit Court of Appeals, and remitted the case for further proceedings, stating:

"Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 1865-1866, 114 L.Ed.2d 395 (1991) (plurality opinion): id., at 375, 111 S.Ct., at 1874 (O'Connor, J., concurring in judgment). Batson, supra, at 96-98, 106 S.Ct., at 1722-1723. The second step of this process does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' Hernandez, 500 U.S., at 360, 111 S.Ct., at 1866 (plurality opinion); id., at 374, 111 S.Ct., at 1874 (O'Connor, J., concurring in judgment).

"The Court of Appeals erred by combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a 'plausible' basis for believing that 'the person's ability to perform his or her duties as a juror' will be affected. 25 F.3d, at 683. It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 106 S.Ct., at 1723; Hernandez, supra, at 359, 111 S.Ct., [at] 1865 (plurality opinion). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary's Honor Center v. Hicks, , 113 S.Ct. 2742, 2748-2749, 125 L.Ed.2d 407 (1993)" (Purkett v Elem, 514 U.S. ----, ---- - ----, 115 S.Ct. 1769, 1770-1771, supra).

In accordance with the foregoing, the question of whether a purportedly nondiscriminatory explanation which has been offered to justify a peremptory challenge is or is not "pretextual" is one which is to be considered as part of what in the Purkett schematic is labeled as "step three" (see, People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173; see also, State v. Gaitan, 536 N.W.2d 11, 15 n. 2 [Minn.]; State v. Gill, 460 S.E.2d 412 [S.C.]; People v. Nunn, 273 Ill.App.3d 519, 210 Ill.Dec. 170, 652 N.E.2d 1146). The question remains: when should a facially neutral explanation be branded as pretextual?

There is a wealth of case law in which we stress the advantage the trial courts have in making determinations of this nature (see, e.g., People v. Pollard, 213 A.D.2d 1088, 623 N.Y.S.2d 470; People v. Jones, 213 A.D.2d 677, 624 N.Y.S.2d 209; People v. Payne, 213 A.D.2d 565, 623 N.Y.S.2d 922; People v. Jupiter, 210 A.D.2d 431, 620 N.Y.S.2d 426; People v. Stiff, 206 A.D.2d 235, 620 N.Y.S.2d 87; People v. Dixon, 202 A.D.2d 12, 615 N.Y.S.2d 904; People v. Bailey, 200 A.D.2d 677, 606 N.Y.S.2d 757; People v. Mondello, 191 A.D.2d 462, 594 N.Y.S.2d 287). Obviously, in a case where counsel advances, as a reason for his or her challenge, anything relating to the potential juror's appearance (hair length, clothing, etc.), the trial court has a distinct and perhaps insurmountable advantage because an appellate court cannot see what...