People v. Thompson

• Court: New York Supreme Court Appellate Division
• Citation: 435 N.Y.S.2d 739,79 A.D.2d 87
• Parties: The PEOPLE, etc., Respondent, v. Reginald THOMPSON, Appellant.
• Decision Date: 02 February 1981

Page 739

435 N.Y.S.2d 739

79 A.D.2d 87

The PEOPLE, etc., Respondent, v. Reginald THOMPSON, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 2, 1981.

William E. Hellerstein, New York City (Susan Manca, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Cynthia Kean, Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and TITONE, MANGANO, GIBBONS and MARGETT, JJ.

MARGETT, Justice.

The primary issue on this appeal is whether defendant's right to a trial by an impartial jury, as defined by our State Constitution, was violated by virtue of the prosecutor's unquestioned use of all of the substantial number of peremptory challenges exercised by him to exclude black prospective jurors from the jury. ¹ Since we conclude that, in the circumstances at bar, the Constitution of this State required the trial court to inquire into the prosecutor's reasons for the exercise of his peremptory challenges before denying defendant's motion for a mistrial based on the prosecutor's alleged misuse of those challenges, defendant's judgment of conviction must be reversed and a new trial ordered.

The defendant, who is black, was tried for the crimes of grand larceny in the second degree and criminal possession of stolen property in the first degree, arising out of the theft of an automobile. Since these crimes are class D felonies, the People and the defendant were each entitled to exercise 10 peremptory challenges ² to prospective "regular" jurors (CPL 270.25, subd. 2, par. (c)). In addition, they were each entitled to four peremptory challenges with respect to the selection of the two alternate jurors to be chosen (id. ). After the trial jurors were selected and sworn, defendant's counsel moved for a mistrial on the ground that the Assistant District Attorney had unlawfully excluded blacks from the jury by using all, ³ of the peremptory challenges exercised by him against prospective jurors who were black, with the result that all the jurors and alternates were white. Specifically defense counsel stated:

"I would like to make a motion for a mistrial on (the) ground * * * that the District Attorney in the selection of the jury in this case has shown a systematic exclusion of Black people in his use of preliminary (sic) challenges by having ten challenges. He used the ten challenges for the ten Black people that were put into the jury. He didn't challenge anyone but Black people. And he even did the same thing in the use of his alternate challenges. The result is that we have an all White jury, which I don't think is prejudicial, but I don't think the District Attorney had the right to use his challenges in a way to systematically exclude any racial group.

"I would point out that my client has shown great apprehension because of the nature and the way that the jury is being selected, that he is going to be given a fair trial by this jury.

"He feels that the District Attorney is trying to purposely select a jury that doesn't reflect any people of his racial background. I think that the record shows that the District Attorney did that, also."

In response, the Trial Judge noted, inter alia, that during the course of jury selection, he had indicated to the Assistant District Attorney his opinion, as a former trial lawyer, that several of the black veniremen peremptorily challenged by him "would have been fair and impartial and were of backgrounds that could have looked at the case fairly and impartially." However, because of his view that "the law is clear" that a prosecutor "has a right to * * * exercise peremptory challenges for whatever reasons he desires" the Trial Judge denied defendant's motion for a mistrial, declining to ask the Assistant District Attorney to state the reasons for the exercise of his peremptory challenges. ⁴ After defendant's motion was thus denied, the Assistant District Attorney volunteered that "(t)he District Attorney rejects the suggestion that the color of a juror necessarily determines the way in which he views evidence and finds the motion uncalled for." He also pointed out that the defendant had successfully challenged one black prospective juror for cause.

Thereafter, the jury ⁵ convicted defendant of criminal possession of stolen property in the first degree, the only charge that was submitted to it.

When the defendant appeared for sentencing, his counsel moved to set aside the verdict on essentially the same ground on which he had based his motion for a mistrial.

In response to defendant's motion, the Assistant District Attorney argued, inter alia, that CPL 270.25 (subd. 1) allowed peremptory challenges for which "no reason need be assigned" and that there was no constitutional impediment to such a practice under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. The prosecutor concluded his argument by stating "the People may systematically and permissibly exclude members of a group and there is no reason for why."

The Trial Judge denied defendant's motion, but stated:

"If I had the right, if I were on this case, to make a finding of fact for you based upon my observation of the jury selection, I would say, and I must say that I would say that in this particular case, I would have found I would find that (the Assistant District Attorney) did in effect appear to the Court specifically and purposely to have excluded blacks in the jury. I would say it appeared to me that he did that with the regular panel, and my feeling for that was substantiated when we called for additional jurors and additional blacks were excluded in much the same manner that you described in your moving papers.

"I am constrained, however, to find that he has not violated existing law at this time by doing that, and if it is to be found that that is an improper method of selecting a jury, I think it has to be said by an Appellate Court or the legislature * * *

"We don't have a right at this time under our existing law to challenge or to question the exercise (sic ) peremptory challenges by either party."

In response to the Trial Judge's remarks, the Assistant District Attorney stated, inter alia:

"I will now state for the record, not that I have to, not that I am obliged to under the law, but that it was not my intent systematically to exclude blacks."

The Trial Judge then imposed sentence.

It is noted at this juncture that it appears that no record of the voir dire was made. However, it is undisputed that the prosecutor used all of the substantial number of peremptory challenges he employed in this case to exclude black veniremen and nowhere in the colloquy before the trial court or in the People's brief on appeal has the Assistant District Attorney articulated any reason why his peremptory challenges were so exercised. Indeed, it is the People's position that under the present state of the law, no reason need be given. Moreover, the People do not suggest that lack of a record of the voir dire deprives us of an adequate basis for review of defendant's claim. In addition, under our view of this case, the Trial Judge's perceptions of the prosecutor's conduct in selecting the jury, coupled with the undisputed fact that the prosecutor used all of his peremptory challenges against blacks and none against whites, serve to cure any deficiencies in the record that might have otherwise existed by virtue of the lack of a record of the voir dire. Accordingly, we address the merits of defendant's claim. ⁶

In essence, defendant's claim is that the prosecutor's alleged use of his peremptory challenges for the purpose of excluding blacks from the jury solely because of their race, effectively deprived him of a right under the State Constitution to be tried by an impartial jury, one of the essential attributes of which is that it be selected from a fair cross-section of the community. In response to defendant's claim, the People rely principally on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, supra.

In Swain, the State prosecutor used what were in effect peremptory challenges to exclude all six black prospective jurors from the jury that was to try the black defendant. The United States Supreme Court rejected defendant's claim that this action violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. After examining the "very old credentials" (p. 212, 85 S.Ct. p. 831) of peremptory challenges and noting that they are often exercised "on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty" (p. 220, 85 S.Ct. p. 835), the Supreme Court concluded (p. 222, 85 S.Ct. p. 836): ⁷

"In the light of the purposes of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it."

The People contend that "the rationale as well as the holding of Swain compels continued adherence to its rule", and rejection of defendant's claim. However, it is well settled that, while due consideration should be given to the rationale of Swain, we are not bound by its holding as to the meaning of the Federal Constitution in interpreting the Constitution of our State. As the Court of Appeals has...