People v. Waters

• Citation: 476 N.Y.S.2d 429,123 Misc.2d 1057
• Parties: The PEOPLE of the State of New York v. Vincent H. WATERS, Defendant.
• Decision Date: 30 April 1984
• Court: New York County Court

Page 429

476 N.Y.S.2d 429

123 Misc.2d 1057

The PEOPLE of the State of New York v. Vincent H. WATERS, Defendant.

Suffolk County Court,

Trial Term, Part VI.

April 30, 1984.

Patrick Henry, Suffolk County Dist. Atty. by Barry Feldman, Asst. Dist. Atty., Riverhead, for the People.

Peter J. Newman, Amityville, for defendant.

MEMORANDUM

STUART NAMM, Judge.

The defendant, a 19 year old black male youth, is charged with the Attempted Murder of a Suffolk County uniformed police officer, while attempting to avoid arrest by him on a Robbery charge. The officer is alleged to have been shot twice with his own weapon in a struggle, during which the defendant allegedly took the officer's gun from its holster.

In a pre-trial motion the defendant alleged that the present method of selecting jurors for petit jury service violates his constitutional rights; specifically, that there is a systematic exclusion of black youths between the ages of 18 and 21. In support of his application, the defendant alleged in an affidavit, that a predominantly white school district, Smithtown, at the request of the Commissioner of Jurors, provides a list, on a regular basis, of its graduating senior class; whereas two other school districts with large black populations, Wyandanch and Amityville, have never been so solicited by the Suffolk County Commissioner of Jurors. The people denied these allegations, claiming that all Suffolk County school districts had been solicited, and the factual issues were thus drawn.

THE HEARING

This court chose to conduct a hearing to determine whether there had, in fact, been a systematic exclusion of blacks between the ages of 18 to 21 from jury service in the county of Suffolk. To that end, the defendant, who has the burden of proof in such a hearing, offered the testimony of the principals of: (1) Brentwood High School, which has a black student population of approximately 10 to 11%; (2) Wyandanch High School, which has a black student population of approximately 94%; (3) Amityville Memorial High School, which has a black student population of approximately 58%; and the attendance officer of Central Islip High School, which has a black student population of approximately 17 to 18%. Each of these witnesses testified that a search of school records from 1979 to date revealed that none of these schools had been solicited by the Commissioner of Jurors requesting a list of its high school graduates. In contrast, however, the former Commissioner of Jurors, Albert J.J. Cavagnaro, testified that in each of the years, 1979, 1981 and 1983, his "Chief Qualifying Clerk" had sent out letters of solicitation to every high school within the county of Suffolk. His testimony was corroborated by the testimony of Lydia Carrera, a senior office typist, who supervised the qualifying of prospective jurors, and who claimed to have sent out all such letters, although no copies thereof were retained on file. There was, however, a list kept which purportedly recorded all schools that were solicited, and their response, if any, to the request for the names of its graduating seniors.

According to her testimony, a substantial majority of the schools did not respond; a few refused to provide such a list; and of those schools which did respond, if no part-time clerical help were available to send questionnaires to these prospective young jurors, it would not be done. Furthermore, although none had been requested, if addresses of graduates were not provided by the school, that list of names would be ignored. Moreover, if a school failed to respond, no effort was made to determine if the solicitation letter was ever received by the school, or whether the school intended to respond thereto.

Three of the schools, whose representatives testified at this hearing, were among those which the Commissioner of Jurors claimed had never responded to the solicitation sent in 1979, 1981 or 1983, and the fourth, Brentwood, through its principal, after first testifying that none had been received, and under circumstances which could be termed suspect, thereafter agreed that it had been solicitated in 1983, and had responded by sending a copy of its commencement exercise program listing the names of its graduates. The Brentwood students were never sent qualifying questionnaires, however, since no addresses were provided by the school. The former Commissioner testified that in 1980 and 1982 over 500 persons between the ages of 18 and 21 were solicited in a random manner using lists of licensed operators provided by the Department of Motor Vehicles. However, the source material was not retained by the Commissioner's office, and whether such solicitation was, in fact, accomplished could not be corroborated by the court, nor could these records be examined by the defendant's counsel pursuant to a subpoena duces tecum which had called for the production of such material in court.

The defendant also offered the testimony of seven very active Suffolk criminal trial lawyers, one of whom was the former District Attorney of Suffolk County, Henry F. O'Brien, Esq., each of whom testified that between the years 1979 to date, he had never seen a black person between the ages of 18 and 21 as a member of a prospective petit jury panel called to service in the county of Suffolk. To counter this, the people presented the testimony of four Assistant District Attorneys, each of whom was either a Bureau Chief or a Deputy Bureau Chief. Each testified that during this same period of time, he had observed at least one black person between the ages of 18 thru 21 on every two or three panels of fifty persons called to petit jury service. It is interesting to note that the latter testimony comports with the county-wide statistics, based upon the 1980 census, that approximately 1 out of every 149 persons between the ages of 18 to 76 in Suffolk County is a black youth between the ages of 18 to 21.

The court also heard the testimony of a senior planner employed by the Long Island Regional Planning Board, Roy Fedelm, who also serves as the head of the State Data Center. His testimony, which was based upon information contained in the 1980 census, has been supplemented by judicial notice which this court has taken sua sponte of demographic data contained in the same census.

As of the 1980 census (the most recent statistical data available), there were 842,223 persons between the ages of 18 to 76 residing in the county, 89,297 of whom were between the ages of 18 to 21, or 10.6%. Within the entire 18 to 21 age group, there were 5,584 blacks or 6.25% of all persons 18 to 21 years old. Of the 5,584 blacks between the ages of 18 to 21, a total of 1,973, or 35.3%, resided in the communities of Brentwood, Central Islip, North Amityville and Wyandanch, whose youth attended the four high schools which claimed not to have been solicited in 1979, 1981 or 1983. Two communities, Smithtown and Stony Brook, whose high schools were solicited each of those years, and each of which provided the names and addresses of its graduates who were sent qualifying questionnaires, have .19% and 1.41% populace of black youths, respectively, between the ages of 18 to 21 in relation to their entire 18 to 21 year old population. In contrast, Brentwood, Central Islip, Wyandanch and North Amityville (which is serviced by Amityville Memorial High School) have 7.24%, 21.49%, 64.49% and 83.55%, respectively.

The court also took judicial notice sua sponte of statistical data provided by the Office of Court Administration relating to the current Suffolk County Master Jury list from which panels of petit jurors are selected. There are presently 103,029 persons in the Master Jury Pool, or approximately 12.2% of the entire population between the ages of 18 thru 76; 2,137 of whom were born in 1963 (2% age 21); 154 born in 1964 (.15% age 20); 219 born in 1965 (.21% age 19); and 0 born in 1966 (0% age 18).

Of the four particular communities considered herein, there are only 4 persons between the ages 18 to 21 from Brentwood in the Master Jury Pool, although there are a total of 3,040 persons represented from that community. Likewise, there are only 4 persons between the ages 18 to 21 from Central Islip, of a total of 1,561 persons represented from that community in the Master Jury Pool. As to Wyandanch and North Amityville, there are 8 and 0 youths 18 to 21 years old in the pool from a total of 630 and 11 individuals, respectively, represented in the jury pool from those communities. Furthermore, there exists no means by which this court can determine what percentage of those persons are black, since the Commissioner testified that no such statistics are maintained by his office; and the qualifying questionnaires utilized by the county are deemed confidential, and are not to be disclosed except to the county jury board or by permission of the Appellate Division. McKinney's 1983 New York Rules of Court, Rules of Supreme Court, Appellate Division, Second Department, Rule § 693.4.

The former Commissioner of Jurors and the "Chief Qualifying Clerk," after substantial prodding by the District Attorney, testified that the county utilizes a random method to select persons from the source material available to them, (i.e.) voter registration lists, volunteers and lists of licensed operators provided by the Department of Motor Vehicles. They further testified that all high school graduates whose names were furnished by any school which had responded to their request were then sent qualifying questionnaires, if addresses were provided. The Commissioner, however, equated "random selection" as being synonymous with "arbitrary selection," and it was conceded by him that the clerks who chose the individuals to be sent such a questionnaire had "a certain amount of discretion." (See United States v. Huber, 457 F.Supp. 1221, 1231-1232; People v. Rosado, 89 Misc.2d 61, 62, 390 N.Y.S.2d 376, rev'd on other grounds, 64 A.D.2d 172, ...