People v. Taylor

• Decision Date: 08 July 2020
• Docket Number: 2017–12281,Ind. No. 229/15
• Citation: 127 N.Y.S.3d 555,185 A.D.3d 724
• Parties: The PEOPLE, etc., Respondent, v. Quaniece S. TAYLOR, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 724

127 N.Y.S.3d 555

The PEOPLE, etc., Respondent,

v.Quaniece S. TAYLOR, Appellant.

2017–12281

Ind. No. 229/15

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 10, 2019

July 8, 2020

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered September 15, 2017, convicting her of assault in the second degree, assault in the third degree, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

On September 10, 2014, the defendant was arrested in connection with an altercation that began on a public bus when her codefendant was playing loud music. At a jury trial, the People contended that the defendant, together with the codefendant and two other accomplices, assaulted two complainants during the altercation and stole a backpack from one of the complainants. Thereafter, the defendant was convicted of assault in the second degree, assault in the third degree, and petit larceny.

On appeal, the defendant argues that the evidence adduced at trial was legally insufficient to sustain the convictions of assault in the second degree and assault in the third degree, as the People failed to prove the required element of "physical injury" (see Penal Law §§ 120.05[2] ; 120.00[1] ). Viewing the evidence in the light most favorable to the prosecution, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crimes proven beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 ), as physical injury, pursuant to Penal Law § 10.00(9) was established with evidence that the complainant experienced substantial pain. To the extent the defendant challenges the legal sufficiency of the evidence on the conviction of assault in the second degree based on the People's failure to prove the use of a "deadly weapon or dangerous instrument," a rational trier of fact could have likewise concluded beyond a reasonable doubt that the defendant used a dangerous instrument against one of the complainants, both alone and in concert with others (see Penal Law § 10.00[13] ; People v. Gurgov, 129 A.D.3d 989, 990, 12 N.Y.S.3d 179 ). Further, upon the exercise of our factual review power, we are satisfied that the convictions of assault in the second degree and assault in the third degree were not against the weight of the evidence (see CPL 470.15[5] ; People v. Avila, 117 A.D.3d 1071, 986 N.Y.S.2d 341 ).

However, as the People concede, the defendant's conviction of assault in the third degree must be vacated and that count of the indictment dismissed as an inclusory concurrent count of assault in the second degree (see CPL 300.40[3][b] ; People v. Paguay, 132 A.D.3d 1014, 18 N.Y.S.3d 354 ; People v. McCalla, 90 A.D.3d 949, 934 N.Y.S.2d 724 ).

The defendant's contentions that her conviction of petit larceny was multiplicitous and that the verdict on that count was repugnant are not preserved for appellate review. As regards multiplicity, the defendant never objected to the verdict sheet on that basis, did not object to the jury charge when it was given, and otherwise failed to raise the issue during the trial. The defendant's contention that the jury verdict on the petit larceny conviction was repugnant was never raised prior to discharge of the jury (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Danon, 167 A.D.3d 930, 931, 87 N.Y.S.3d 904 ). We decline to reach these issues in the exercise of our interest of justice jurisdiction (see CPL 470.15 ).

The issue that divides our panel is the Batson challenge. We agree that the case of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 directs a three-step analysis for determining whether peremptory challenges have been used to exclude potential jurors for impermissibly discriminatory reasons. The first step requires that the moving party make a prima facie showing of discrimination in the opponent's exercise of peremptory challenges (see People v. Bridgeforth, 28 N.Y.3d 567, 573, 46 N.Y.S.3d 824, 69 N.E.3d 611 ; People v. Smocum, 99 N.Y.2d 418, 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). The second step shifts the burden to the nonmoving party to provide race-neutral reasons for peremptorily challenging each of the contested jurors (see People v. Payne, 88 N.Y.2d 172, 181, 643 N.Y.S.2d 949, 666 N.E.2d 542 ). If the nonmoving party fails to meet that burden, the Batson challenge is established. If, however, the nonmoving party provides facially permissible, nondiscriminatory reasons for the exercise of the contested peremptory challenges, the third step of the Batson challenge is then reached (see People v. Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Allen, 86 N.Y.2d 101, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ). During step three, the burden shifts back to the moving party to prove that the nonmovant's reasons for exercising the peremptory challenges were pretextual (see People v. Hecker, 15 N.Y.3d 625, 634, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Allen, 86 N.Y.2d at 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ). As the Court of Appeals has cautioned, "meaningful inquiry into the question of discrimination" requires an adherence to this "crucial process" ( People v. Smocum, 99 N.Y.2d at 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [internal quotation marks omitted] ).

Here, after the third round of jury selection, counsel for the codefendant alleged that the prosecutor had "discriminatorily challeng[ed]" African–American jurors, namely, Ocean, Pustam, Etheart, Marinia, Davis, and Duncan. Counsel for the defendant joined in that application. After the Supreme Court indicated that the defendant had made out a prima facie case for a Batson challenge, and properly invited the People to provide a response under step two, the People asserted that Pustam, who was from Trinidad in the Caribbean, was "not African–American." Defense counsel neither disputed nor objected to the prosecutor's assertion.

Although we agree with our dissenting colleagues that the Supreme Court properly required the People to provide a response under step two, during that step, race-neutral reasons were discussed for the prosecutor's peremptory challenge of various prospective jurors, namely, Pustam, Ocean, Etheart, Marinia, Davis, and Duncan. As noted, the People argued that Pustam, who was from Trinidad in the Caribbean, was not "African–American." Toward the conclusion of the step-two discussion, the court determined that the prosecutor had expressed race-neutral bases for the peremptory challenges to the challenged jurors. The court also advised defense counsel that an exception to the ruling was noted on the record, which was global to the various contested jurors rather than specific to any one of them.

When, as here, a court accepts the reason given by the prosecutor at step two as race-neutral, the Court of Appeals has directed that the defendant "must [then] make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination," during step three ( People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 [emphasis added] ). The Supreme Court's unilateral act of noting the defendant's "exception" to its ruling is not a specific objection at all, but is a mere general one that fails to preserve the defendant's appellate arguments as to Pustam. The general exception noted by the court did not specify the reason and did not identify which prospective juror, or jurors, the exception was intended to cover.

Had the Batson discussion ended there, the Supreme Court would have committed error in failing to invite defense counsel to address the shifted burden, under step three, of proving that the People's stated reasons for exercising the peremptory challenges were merely pretextual (see People v. Smocum, 99 N.Y.2d at 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). However, the discussion with the court did not end there. Despite having made what appeared at first blush to be a Batson ruling and unilaterally noting the defendants' exception to it, the court proceeded to nevertheless engage in the required step-three analysis. Indeed, defense counsel correctly stated at the outset of the continuing discussion that "we [now] have a chance to establish that [the People's] race-neutral reasons are pretextual."

At no time during step three did the defendant argue that the People had failed to meet their burden under step two of the Batson analysis as to juror Pustam. The defendant focused instead on whether the explanations given by the prosecutor during step two were pretextual. During step three, defense counsel specifically argued that the prosecutor's reasons for the peremptory challenges of jurors Ocean and Duncan were pretextual. Defense counsel made absolutely no argument during step three as to jurors Pustam, Etheart, Marinia, and Davis. In other words, the defendant had an opportunity to argue that the People had not met their step-two burden as to the challenged jurors, and an opportunity to argue that the prosecutor's reason for challenging Pustam was pretextual, but did not do either as to Pustam and others, despite making step-three arguments about Ocean and Duncan. The Supreme Court then denied the defendant's Batson challenge that is now before us on appeal, and again unilaterally noted a general...