The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissenting opinion, determined the trial judge's failure follow the protocol for Batson challenges to the prosecutor's removal of African-American males from the jury required reversal. Although the issues were preserved, the court noted it had the power to exercise interest of justice jurisdiction over Batson issues. The court further held a combined racial/gender bias is the proper subject of a Batson challenge:
The wholesale exclusion of black men from the jury gives rise to a mandatory inference of discrimination at the first step of the Batson inquiry … . The prosecutor used peremptory strikes to eliminate black male jurors while not excluding others who expressed skepticism about the credibility of police officers, such as the woman on the first panel who stated that “sometimes the police [were] not [doing their job],” and “could be forceful . . . if . . . threatened,” and the woman on the second panel who said she'd “seen things go both ways” with the police. * * *
The court failed to follow the three-step Batson protocol. Although the prosecutor furnished some explanations for the strikes, he gave them only as to Hewitt and Prosser, not Lortey. Even if those explanations were accepted as facially neutral, the court was obliged to continue on to step three and afford defense counsel the opportunity to show that the prosecutor's stated reasons for the strikes were pretextual. Defense counsel was never given the opportunity to argue that the prosecutor's explanations were a pretext for discrimination. The court improperly combined steps and deviated from the Batson protocol, which cannot be considered harmless or nonprejudicial to defendant … . People v Watson, 2016 NY Slip Op 03688, 1st Dept 5-10-16
CRIMINAL LAW (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/APPEALS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/JURORS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/BATSON CHALLENGES (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)