People v. Scott

• Decision Date: 19 November 1987
• Citation: 522 N.Y.S.2d 94,516 N.E.2d 1208,70 N.Y.2d 420
• Parties: , 516 N.E.2d 1208 The PEOPLE of the State of New York, Respondent, v. Suzette SCOTT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 94

522 N.Y.S.2d 94

70 N.Y.2d 420, 516 N.E.2d 1208

The PEOPLE of the State of New York, Respondent, v. Suzette SCOTT, Appellant.

Court of Appeals of New York.

Nov. 19, 1987.

Edward J. Nowak, Public Defender (Yolanda Villa, Rochester, of counsel), for appellant.

Howard R. Relin, Dist. Atty. (Melvin Bressler, Rochester, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant, a black prostitute, was charged with murdering and robbing a white customer, a retired Rochester police officer. She claimed at trial that she acted in self-defense when decedent attacked her with a knife because she failed to satisfy him. The jury found her guilty of manslaughter, first degree, and grand larceny, third degree, and the court sentenced her to a 7- to 21-year prison term on the manslaughter count with a lesser concurrent sentence for the larceny.

Defendant contends the conviction may not stand because at trial her counsel established an unrebutted prima facie case that the prosecution had used its peremptory challenges to systematically exclude blacks from the jury for discriminatory purposes (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). We agree and, therefore, reverse the order of the Appellate Division, 115 A.D.2d 964, 497 N.Y.S.2d 1021.

I

At the time of defendant's trial and appeal to the Appellate Division, the applicable law on the use of peremptory challenges for discriminatory purposes was found in Swain v. Alabama, 380 U.S. 202 85 S.Ct. 824, 13 L.Ed.2d 759. In Swain, the Supreme Court held that prosecutors are presumed to exercise their peremptory challenges in a nondiscriminatory manner and that the presumption is not overcome by establishing that the prosecutor excluded persons of defendant's race from defendant's petit jury. The presumption could only be rebutted if the accused established the prosecution systematically excluded minorities from juries over a period of time. We followed the Swain rationale in People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915.

While defendant's appeal was pending before this court, the Supreme Court reexamined the Swain rule in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra, and recognized that the rule was placing a crippling burden on defendants and rendering the use of peremptory challenges for discriminatory purposes immune from attack. Accordingly, the court overruled Swain in part, holding that a finding of purposeful discrimination could be based solely upon the prosecutor's exclusion of racial minorities in a single case. Under Batson, to establish prima facie that the prosecutor discriminated in selecting the jury, a defendant must show (1) that he or she is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove venire members of defendant's race from the jury and (2) facts and other relevant circumstances sufficient to raise an inference that the peremptory challenges were used for discriminatory purposes. Defendant, in establishing a prima facie case, may also rely on the proposition that peremptory challenges permit discrimination by those inclined to discriminate. Once defendant makes a prima facie showing of discrimination, the burden shifts to the prosecution to come forward with a neutral explanation for the use of its challenges. The prosecution cannot rebut defendant's prima facie case, however, by merely alleging its good faith or by a claim that the stricken jurors would be biased because they shared the defendant's race (id., 476 U.S. at 97, 106 S.Ct. at 1723).

In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, the Supreme Court declared that Batson applied retroactively to all pending direct appeals (cf., People v. Ford, 69 N.Y.2d 775, 513 N.Y.S.2d 106, 505 N.E.2d 615).

II

With this legal background we turn now to the facts in defendant's case. After the jury was empaneled but before the trial commenced, defense counsel moved for a mistrial contending the prosecution used its peremptory challenges to systematically exclude blacks from the jury. There is no transcript of the voir dire, but the facts on which defendant relied are set forth extensively in the colloquy before the court during defendant's motion.

The venire of potential jurors for defendant's trial contained five blacks. The prosecutor excluded all five from the petit jury by exercising peremptory challenges. In moving for a mistrial, defense counsel noted that "if they were white, [they] would be the exact type of people that any District Attorney would want to have on [his] jury, and they have been * * * excluded [solely because of] the color of their skin." He then recited the background of each black juror, stating that the first one excluded by the trial assistant had "attended two colleges" and was a "very articulate man"; he had strong religious affiliations and was employed as a bus driver. The second juror peremptorily struck by the prosecutor was a woman who was a college graduate and presently teaching nursery school. Counsel described both of these prospective jurors as "exhibiting absolutely no prejudices one way or the other."

Defense counsel voiced even stronger objections to the prosecutor's strike of the third, fourth and fifth prospective black jurors. The third black member of the venire was a woman who had relatives on the Rochester police force. Puzzled by the trial assistant's decision to exclude her, defendant's lawyer noted she was the type of juror a defense attorney--not the prosecutor--would want stricken from the jury in a case where the victim was a retired police officer. The fourth prospective black juror, a woman, was a college graduate who worked at the Rochester Psychiatric Center. Her brother-in-law had been "killed as the result of an assault." Defense counsel suggested that any bias she might have would favor the victims of violent crime, and thus the prosecution, not the defendant. The fifth black juror removed by the prosecutor was a woman who had graduated from college and had two grown children who were college students. She worked as a school nurse, had been exposed to unfavorable pretrial publicity regarding the case and had several associations with Rochester police officers. Defense counsel maintained that if these three jurors were prejudiced in any way, they were "prosecution oriented."

The People did not dispute counsel's statements, offer additional facts, or try to explain the strikes. Rather, they contended the motion was untimely and that under the Swain-McCray rules the evidence of discrimination was insufficient.

The trial court denied the motion, basing its ruling on our decision in People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915, supra. The court noted, however, that if McCray had not superseded the Second Department's decision in People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739, defendant "probably" had demonstrated enough to establish a prima facie case of discrimination. The Thompson decision held that under New...