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THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and dismissed the indictment because of the court’s errors in handling a Batson challenge. The People argued that defense counsel was using all peremptory challenges to exclude women, which was not the case. The court accepted the argument and proceeded to step two of the Batson procedure by asking defense counsel for a gender neutral explanation. Defense counsel stated that the potential juror was a nurse and may have seen victims of domestic abuse. The judge did not accept defense counsel’s reason. The Fourth Department found that step one of the procedure was flawed because defense counsel had excluded both men and women, and noted that the reason given by defense counsel for step two was sufficient:

… [T]he issue whether the People established a prima facie case of discrimination at step one of the Batson inquiry is not moot. Whether a Batson applicant made out a prima facie case of discrimination is moot only if the court proceeded to step three of the inquiry and ” has ruled on the ultimate question of intentional discrimination’ “… . Here, however, the court “stopped at step two and wrongly stated that the proffered reason for the challenge was not [gender] neutral[, and thus] . . . it cannot be said that the trial court [had] ruled on the ultimate question of intentional discrimination’ “… .

With respect to the merits of defendant’s contention concerning the step one inquiry, we agree with him that the People failed to establish a prima facie case of discrimination. The only ground asserted by the People in support of their Batson application was that every peremptory challenge exercised by defendant was used to strike a woman from the jury panel. As defendant argued in opposition, the People’s assertion was incorrect. In fact, defendant had previously exercised peremptory challenges to excuse two men from the jury panel. Thus, the only fact articulated by the People in support of their Batson application is belied by the record. Inasmuch as the People failed to make out a prima facie case of discrimination, the court erred in proceeding to step two of the inquiry and ultimately in seating the juror notwithstanding defendant’s peremptory challenge … . People v Smouse, 2018 NY Slip Op 02921, Fourth Dept 4-27-18

​CRIMINAL LAW (JURORS, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))

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