People v. Wilson

• Decision Date: 25 May 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Marcus WILSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 41 73 A.D.3d 606 The PEOPLE of the State of New York, Respondent, v. Marcus WILSON, Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. May 25, 2010.

Richard M. Greenberg, Office of the Appellate Defender, New York (John J. Song of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), for respondent.

GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, RENWICK, FREEDMAN, JJ.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered January 31, 2007, convicting defendant, after a jury trial, of coercion in the first degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, reversed, on the law, and the matter remanded for a new trial.

Defendant appeals from a conviction of coercion in the first degree stemming from his alleged physical and sexual abuse of his girlfriend. When the case was initially before us, we held that the prosecutor's use of his peremptory challenges (five), at the end of the first round of jury selection, all against men, established a prima facie case of gender discrimination, requiring the prosecutor to give neutral explanations for those challenges ( People v. Wilson, 65 A.D.3d 956, 886 N.Y.S.2d 17 [2009] ). This Court held the appeal in abeyance, and remanded the matter to Supreme Court to hold an evidentiary hearing concerning whether the prosecutor exercised his peremptory challenges in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].

Thereafter, on November 20, 2009, Supreme Court held the required Batson hearing. After reviewing the notes taken contemporaneously with the exercise of his peremptory challenges, the prosecutor proffered reasons for four of the five prospective male jurors in question. He explained that because he preferred jurors with a college education, he peremptorilychallenged two prospective male jurors who "had not progressed beyond high school." He peremptorily challenged a third prospective male juror who had reported being involved in a contentious landlord and tenant dispute. The prosecutor peremptorily challenged a fourth prospective male juror because he had expressed strong animus toward lawyers. The prosecutor, however, had no recollection of the reason he exercised a peremptory challenge against a fifth prospective male juror. Nor did the prosecutor's contemporaneous notes contain any information about this prospective male juror which may have helped him refresh his recollection on the subject.

By a decision and order dated March 10, 2010, Supreme Court found that the prosecutor provided gender neutral reasons for the exercise of peremptory challenges for "three of the four male jurors who [were] the subject of the hearing." However, as fully detailed above, the prosecutor in fact provided explanations for four of the five male prospective jurors in question. The one prospective male juror overlooked by Supreme Court in its decision was peremptorily challenged by the prosecutor because "he had not progressed beyond high school." This is the same explanation proffered by the prosecutor for peremptorily challenging another prospective male juror and which Supreme Court found in its decision to be a gender neutral explanation. Ultimately, Supreme Court did not proceed to step three of the Batson analysis because it found that "a failure of memory signifies that the party who struck the juror has not met his or her burden of providing a neutral explanation" for that prospective male juror.

We agree with Supreme Court. When the prosecutor was unable to recall why he had exercised a peremptory challenge against one of the five prospective male jurors in question, he, in essence, failed to provide any justification for this exclusion ( see People v. Davis, 253 A.D.2d 634, 677 N.Y.S.2d 541 [1998]; People v. Dove, 172 A.D.2d 768, 569 N.Y.S.2d 147 [1991], lv. denied 78 N.Y.2d 1075, 577 N.Y.S.2d 238, 583 N.E.2d 950 [1991]; People v. Sandy, 164 A.D.2d 898, 559 N.Y.S.2d 576 [1990]; People v. Bozella, 161 A.D.2d 775, 776, 556 N.Y.S.2d 121 [1990]; People v. Mims, 149 A.D.2d 948, 540 N.Y.S.2d 80 [1989], lv. denied 74 N.Y.2d 744, 545 N.Y.S.2d 118, 543 N.E.2d 761 [1989], lv. dismissed 76 N.Y.2d 792, 559 N.Y.S.2d 997, 559 N.E.2d 691 [1990] ). Unable to offer a gender neutral explanation for challenging the subject prospective male juror, the prosecutor failed to meet his burden of overcoming the presumption of discrimination found by this Court ( People v. Allen, 86 N.Y.2d 101, 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ).

Contrary to the prosecutor's allegations, it is of no moment that he provided putative gender neutral explanations as to the other four prospective male jurors. Because the exclusion of even a single juror on gender...