People v. Teran

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: RENWICK, J.P. (concurring)
• Citation: People v. Teran, 172 A.D.3d 447, 100 N.Y.S.3d 19 (N.Y. App. Div. 2019)
• Decision Date: 07 May 2019
• Docket Number: 8534,Ind. 3247/13
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond TERAN, Defendant–Appellant.

172 A.D.3d 447

100 N.Y.S.3d 19

The PEOPLE of the State of New York, Respondent,

v.Raymond TERAN, Defendant–Appellant.

8534

Ind. 3247/13

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

ENTERED: MAY 7, 2019

Law Office of Robert "Bob" Walters, Bronx (Robert "Bob" Walters of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack, for respondent.

Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ.

All concur except Renwick, J.P. who concurs in a separate memorandum as follows:

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered January 28, 2016, as amended March 17, 2016, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree and seven counts of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to an aggregate term of seven years, affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The evidence established that on some occasions defendant personally sold drugs, and it also supported a reasonable inference that he was accessorially liable for other sales (see Penal Law § 20.00 ). There was no requirement that the indictment contain any language about acting in concert, because "there is no legal distinction between liability as a principal or criminal culpability as an accomplice" ( People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ).

The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]. The prosecutor exercised peremptory challenges against three African–American panelists who are the subject of the defendant's Batson claim, and two non-African-Americans, but not against a fourth African–American. The record supports the court's finding that the nondiscriminatory reasons provided by the prosecutor for the challenges in question were not pretextual. One panelist had previously served on a hung jury, which we have found to be a valid race-neutral reason for a peremptory challenge ( People v. Mitchell, 216 A.D.2d 156, 628 N.Y.S.2d 650 [1st Dept. 1995], lv denied 86 N.Y.2d 798, 632 N.Y.S.2d 511, 656 N.E.2d 610 [1995] ). An additional non-pretextual explanation for challenging this panelist was the prosecutor's association of her service as a coordinator at a soup kitchen with possible associations with drug users, which raised a concern with the prosecutor that she might have harbored sympathy towards a defendant charged with drug offenses. Somewhat analogously, we previously have found the absence of a racial pretext for peremptory challenges premised on a panelist's social service orientation, which might lead the panelist to sympathize with someone in the defendant's position ( People v. Wint, 237 A.D.2d 195, 197, 655 N.Y.S.2d 469 [1st Dept. 1997], lv denied 89 N.Y.2d 1103, 660 N.Y.S.2d 397, 682 N.E.2d 998 [1997] ). The second challenged panelist expressed reservations about accessorial liability indicating reluctance to find someone guilty unless he had directly sold drugs, a valid race-neutral basis in a case such as this. This panelist who, as a case manager for a community based organization, had worked with persons who were HIV-positive drug users, also supported the prosecutor's concern about sympathy for defendant ( People v. James, 282 A.D.2d 264, 724 N.Y.S.2d 31 [1st Dept. 2001], affd 99 N.Y.2d 264, 755 N.Y.S.2d 43, 784 N.E.2d 1152 [2002] ; People v. Wint, 237 A.D.2d at 197, 655 N.Y.S.2d 469 ). The third Batson challenge pertained to a panelist who seemed unaware of the neighborhood where her mother lived, explained her disinterest as "I don't ask a lot of questions," and generally seemed disinterested in the entire process.

We have previously found the absence of racial pretext in explanations for peremptory challenges that rest in the panelist's lack of interest ( People v. Artis, 262 A.D.2d 215, 694 N.Y.S.2d 5 [1st Dept. 1999], affd sub nom. People v. Jeanty, 94 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237 [2000] ; People v. Valentine, 298 A.D.2d 126, 747 N.Y.S.2d 509 [1st Dept. 2002], lv denied 99 N.Y.2d 586, 755 N.Y.S.2d 722, 785 N.E.2d 744 [2003] ) and in the demeanor presented during voir dire ( People v. Mohammed, 45 A.D.3d 251, 844 N.Y.S.2d 264 [1st Dept. 2007], conclusions that we also reach here. The trial court's findings in these regards are entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ). Since each of the panelists at issue was challenged for a credible, race-neutral reason, the record does not warrant a finding of pretext in the prosecutor's exercise of peremptory challenges.

Defendant's arguments under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] are unavailing. The People made extensive and timely disclosures relating to civil cases filed against two police witnesses, and defendant had ample opportunity to use this material at trial but chose not to do so. Defendant's main complaint relates to a motion decision by a United States District Judge in one of the disclosed lawsuits, which defendant claims to have a bearing on the officer's credibility. Although the People did not disclose this particular decision, it was both a matter of public record and readily available to defendant by making an electronic search. Defendant's claim that additional lawsuits against the testifying officers came to light after defendant's trial is likewise outside the record before us.

RENWICK, J.P. (concurring)

I agree with the majority that the verdict was not against the weight of the evidence. I also agree that defendant's arguments under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] are unavailing. However, as to defendant's Batson claim, that the prosecutor challenged potential jurors because of their race, I am constrained to concur in the result reached by the majority.

Peremptory challenges enable litigants to remove otherwise qualified prospective jurors from the jury panel without any showing of cause; consequently, they have been historically exercised based on race. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986], the Supreme Court tried to remedy the most obvious abuses by requiring that strike proponents give a "race neutral" reason for their strikes and directing trial courts to assess the credibility of the explanation. Whether...