STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant’s step one Batson challenge was properly rejected as a vague and conclusory assertion that did not create a so-called Concepcion problem. The dissent argued the scenario presented a classic Concepcion problem. The court noted that the cross-racial identification jury instruction should have been given but found the error harmless:

… [D]efense counsel stated that the prospective juror in question was the “only black juror” who had not already been dismissed for cause and there was “no indication” that the juror would be “anything other than fair and impartial to both sides.” After considering defendant’s argument at step one, the court observed that defendant had failed to demonstrate a discriminatory pattern of strikes and denied his application without prompting the prosecutor to provide a race-neutral reason at step two … . Insofar as the court based its reasoning on the erroneous notion that a discriminatory pattern of strikes must be shown, that reasoning was flawed … . Nevertheless, because defendant failed to establish a prima facie case at step one, the court properly denied his application without further inquiry … .

Our dissenting colleague concludes that we have a Concepcion problem (see generally People v Concepcion, 17 NY3d 192, 197-198 [2011]), but we respectfully disagree. Whether a defendant has demonstrated a discriminatory pattern of peremptory strikes goes to the issue of whether that defendant has established a prima facie case at step one of the Batson inquiry (see generally Bolling, 79 NY2d at 324). Because the court relied on that ground in denying the application, Concepcion does not preclude us from affirming the judgment on the same ground, i.e., that defendant failed to establish a prima facie case at step one … . …

Where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect” … . People v Boyd, 2020 NY Slip Op 03342, Fourth Dept 6-12-20