The Second Department determined the reasons proffered by the prosecutor for the peremptory challenge of two black jurors were “pretextual” under a Batson analysis, requiring reversal. With regard to one of the two pretextual challenges, the court wrote:
A new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79) as to two black prospective jurors. In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories … . In step one, the moving party must make a prima facie case of purposeful discrimination by “showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason” … . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party “offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome” … . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and ” the trial court must determine whether the proffered reasons are pretextual'” …, including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others… . * * *
With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was “just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone.”
Contrary to the Supreme Court’s determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror … . Furthermore, the prosecutor’s challenge was admittedly based on his “feeling” that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact … . When the reason advanced for a peremptory challenge relates to a juror’s appearance, deference must be afforded to the trial court’s findings with regard to pretext, as the trial court has the distinct advantage of being able to observe the juror … . However, the same cannot be said when the reason advanced for the challenge is based on the juror’s profession or background … . Indeed, it would not “be acceptable for this Court to invoke the rule providing for deference to the trial court in matters of credibility in order to rubber stamp every determination relating to the legitimacy of a peremptory challenge” … . People v Bell, 2015 NY Slip Op 01812, 2nd Dept 3-4-15