People v. Stiff

• Decision Date: 12 December 1994
• Citation: 206 A.D.2d 235,620 N.Y.S.2d 87
• Parties: , 63 USLW 2444 The PEOPLE, etc., Respondent, v. Douglas STIFF, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 87

620 N.Y.S.2d 87

206 A.D.2d 235, 63 USLW 2444

The PEOPLE, etc., Respondent, v. Douglas STIFF, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 12, 1994.

Philip L. Weinstein, New York City (Daniel Hsiung, of counsel), for appellant.

Charles J. Hynes, Dist. Atty. of Kings County, Brooklyn (Roseann B. MacKechnie, Ruth E. Ross, Charles D. Day, and Joseph Tucker, of counsel), for respondent.

Before RITTER, J.P., and COPERTINO, SANTUCCI and HART, JJ.

COPERTINO, Justice.

The issue to be decided on this appeal is whether the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 and, more importantly, the rules of law which have evolved since Batson, preclude a criminal defendant from using his peremptory challenges to exclude potential jurors because they do not belong to a particular racial group. We conclude that such a practice is improper, and therefore affirm the judgment appealed from.

I

The defendant, who is black, was indicted for criminal possession of a weapon in the third degree and menacing based on an incident occurring on January 7, 1991, in a subway station passageway. After voir dire examination of the first panel of 16 prospective jurors, the defendant unsuccessfully challenged panelist number four for cause. The defendant then exercised five of his peremptory challenges to exclude panelists two, four, seven, nine, and fourteen. The prosecution voiced a "Batson challenge", noting that panelist number two was a white male, number four was an Asian male, number seven was an Hispanic male, number nine was a white female, and number fourteen was an Hispanic female. The defense counsel argued that the challenged panelists were of different sexes, races and nationalities. The court then noted that none of the challenged panelists was black. The court therefore found, prima facie, that the defendant had exercised his challenges in a racially discriminatory manner to eliminate all but one of the nonblacks from the panel, and required the defendant to provide race-neutral reasons for the challenges.

The defense counsel then indicated that panelist number two, the white male, was challenged because he was employed in a supervisory capacity, and because he had previously served on a civil jury. Counsel was concerned that panelist number two might not fully appreciate the difference between civil and criminal cases. Noting that the defendant had not objected to a black female who had served on a civil jury, the court rejected the reasons as pretextual, and seated panelist number two.

As to panelist number four, an Asian male, counsel argued that his employment as a subway train operator and resulting contact with the New York City Transit Police might taint his objectivity. The court concluded that the explanation was tenuous, but nonetheless allowed the challenge. The court also allowed the defendant's challenge to panelist number seven, an Hispanic male, on the ground that he had initially indicated that he might find a police officer more credible than other witnesses.

Regarding panelist number nine, a white female, counsel argued that her history of employment with New York Telephone, a large, "hierarchal organization", might make her biased in favor of the prosecution. The court rejected counsel's explanation as pretextual. The court then sua sponte dismissed panelist fourteen, an Hispanic female, for cause, on the ground that she appeared to have difficulty understanding English.

The remainder of jury selection occurred without incident. After a trial, the jury found the defendant guilty of criminal possession of a weapon in the third degree. ^* The defendant argues on this appeal, inter alia, that the trial court erred in seating panelists two and nine.

II

We begin with the well-settled rule that prosecutors may not exercise peremptory challenges to exclude prospective jurors on the basis that they and the defendant share the same race (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, supra; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; People v. Scott, 70 N.Y.2d 420, 522 N.Y.S.2d 94, 516 N.E.2d 1208). This rule was subsequently expanded so that a criminal defendant may object to the race-based exclusion of potential jurors, regardless of whether the defendant and the jurors in question are of the same race (see, Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411).

The holding of Batson has also been applied to the reverse situation to preclude criminal defendants from using peremptory challenges in a racially discriminatory manner (see, Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50; People v. Mondello, 191 A.D.2d 462, 594 N.Y.S.2d 287). This extrapolation of the Batson rule is based on the Equal Protection guarantees of the United States Constitution (see, Georgia v. McCollum, supra, 505 U.S. at 47-54, 112 S.Ct. at 2353-2357, 120 L.Ed.2d at 44-48), and on the Equal Protection and Civil Rights clauses of New York State Constitution article 1, § 11 (see, People v. Kern, supra, 75 N.Y.2d at 650-657, 555 N.Y.S.2d 647, 554 N.E.2d 1235). While the holding in Batson was primarily intended to protect the rights of the defendant (see, Batson v. Kentucky, supra, 476 U.S. at 86, 106 S.Ct. at 1717-1718), the Supreme Court also recognized the rights of the jurors themselves (see, Batson v. Kentucky, supra, at 87, 106 S.Ct. at 1718). In virtually every variation of the Batson situation, i.e., in cases where the defendant and the excluded jurors do not share the same race, the central concern is the right of every citizen to serve on a jury (see, e.g., Georgia v. McCollum, supra, 505 U.S. at 47-50, 112 S.Ct. at 2353-2354, 120 L.Ed.2d at 44-45; Powers v. Ohio, supra, 499 U.S. at 406-409, 111 S.Ct. at 1368-70; People v. Kern, supra, 75 N.Y.2d at 650-654, 555 N.Y.S.2d 647, 554 N.E.2d 1235; see also, Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664). Reduced to their essential terms, these precedents make it clear that no matter what the factual context, neither the prosecution nor the defense can exercise peremptory challenges to exclude prospective jurors based on their race (see, Georgia v. McCollum, supra, 505 U.S. at 57-59, 112 S.Ct. at 2358-2359, 120 L.Ed.2d at 51; Powers v. Ohio, supra, 499 U.S. at 409, 111 S.Ct. at 1369-70; People v. Kern, supra, 75 N.Y.2d at 653, 657, 555 N.Y.S.2d 647, 554 N.E.2d 1235).

III

The case now before us is novel in that while most Batson cases involve exclusion of a particular racial group, we are faced with the question of whether it is improper for a defendant to exercise peremptory challenges in a manner which purposefully excludes prospective jurors who do not share the defendant's race. Relying on case law stating that the issue of whether a prima facie case of discrimination has been made is moot once race-neutral explanations have been offered and the trial court has rendered its ultimate determination (see, Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395; see also, People v. Jones, 204 A.D.2d 485, 611 N.Y.S.2d 640), the prosecution argues that we need not address the issue of whether a prima facie case of discrimination was established in this case.

We find the cited rule inapplicable in this case. In Hernandez, the People did not dispute, neither at the trial court, nor in the New York Court of Appeals, nor in the United States Supreme Court, that the defendant had established a prima facie case of discrimination against persons of Hispanic descent (see, Hernandez v. New York, supra, 500 U.S. at 378, 111 S.Ct. at 1876 [dissenting opn of Stevens, J.]; People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621). In the closing paragraph of the plurality opinion, Justice Kennedy noted that while it was not error for the New York courts to address whether the defendant established a prima facie case of discrimination, the inquiry was unnecessary, "given the course of proceedings in the trial court" (Hernandez v. New York, supra, 500 U.S. at 372, 111 S.Ct. at 1872).

Unlike in the Hernandez case, the defendant in this case argued in the trial court, and continues to argue before this court, that the People failed to establish a prima facie case of discrimination. Specifically, the defendant argues that nonblacks are not a "cognizable racial group" within the meaning of Batson (supra, at 96, 106 S.Ct. at 1723). This case is therefore distinguishable from the Hernandez case, because the defendant preserved for appellate review the issue of whether the prosecution established a prima facie case of discrimination, and has now raised the issue on appeal. We find that the rule urged by the prosecution is inapplicable here, and conclude that our review of the defendant's argument is not precluded. This result is not inconsistent with our earlier decision in People v. Jones (supra), since, in that case, the defendant did not dispute the prosecution's prima facie showing of discrimination in the trial court.

A

The defendant relies on Batson and subsequent cases for the argument that peremptory challenges should be rejected only when the challenges show the exclusion of a "cognizable racial group" (Batson v. Kentucky, supra, 476 U.S. at 96, 106 S.Ct. at 1723; People v. Smith, 81 N.Y.2d 875, 876, 597 N.Y.S.2d 633, 613 N.E.2d 539; People v Mathews, 201 A.D.2d 588, 607 N.Y.S.2d 738; People v. Figueroa, 194 A.D.2d 551, 599 N.Y.S.2d 978). The defendant contends that "nonblacks" are not such a cognizable group. In other words, the defendant argues that it is not improper to exclude all but one single race.

We cannot agree that the law would allow such a conclusion. The requirement that the excluded jurors be members of a...