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NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the County Court judge did not follow the required steps and procedures for addressing defendant’s Batson challenges to the prosecution’s exercise of peremptory challenges. In one instance the judge indicated the prospective juror was “Carribean,” not “African American.” The Fourth Department noted that a Batson challenge may be based on color alone, as opposed to ethnicity. The County Court judge questioned another Batson challenge to an African-American prospective juror on the ground that the defendant was Caucasion. The Fourth Department pointed out that the race or ethnicity of a defendant is not relevant. Among the many problems cited by the Fourth Department:

When the prosecutor struck prospective juror number 13, defense counsel raised a Batson claim, asserting that the prospective juror had never been involved in the criminal justice system in any way and that she unequivocally stated that she could be fair and impartial. In response, the prosecutor explained that he struck prospective juror number 13 because she was in nursing school and stated on her juror questionnaire that she was going to school because she wanted to help people, which in the prosecutor’s view indicated that she may be sympathetic to defendant.

Instead of determining whether the race-neutral explanation offered by the prosecutor was pretextual, the court engaged defense counsel in an extended colloquy during which the court asked how defendant, as a Caucasian, could assert a Batson claim with respect to an African-American prospective juror. Defense counsel answered, correctly, that a defendant need not be the same race as the stricken prospective juror …. . …

We … conclude that, based on the court’s wholesale failure to comply with the Batson protocol with respect to multiple African-American prospective jurors who were the subject of peremptory challenges by the People, defendant is entitled to a new trial … . People v Pescara, 2018 NY Slip Op 04927, Fourth Dept 6-29-18

​CRIMINAL LAW (JURORS, BATSON CHALLENGE, NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON CHALLENGES, NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))/BATSON CHALLENGES (CRIMINAL LAW, JURORS,  NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPARTMENT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT))

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