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IN THIS BATSON CHALLENGE CASE, THE MAJORITY HELD THE DEFENSE’S FAILURE TO ADDRESS THE PROSECUTOR’S STATED REASON FOR EXCLUDING A PROSPECTIVE JUROR, I.E. THAT THE PROSPECTIVE JUROR WAS NOT AFRICAN-AMERICAN, PRECLUDED APPEAL ON THAT ISSUE; THE DISSENT ARGUED THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WITH RESPECT TO THAT JUROR, REQUIRING REVERSAL (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined defendant’s Batson challenges were properly handled by the court and properly denied. The defense challenged the exclusion of several African-American potential jurors. With respect to one of the potential jurors, Putsam, the prosecutor answered the challenge by simply saying Putsam was not African-American. Although all three stages of a Batson challenge were addressed with respect to the other challenged jurors, nothing further was argued with respect to Putsam. The dissent argued the required three-step process was not followed with Putsam, requiring reversal and a new trial:

A review of the trial transcript leads to the inescapable conclusion that the Supreme Court engaged in all three analytical steps required by Batson v Kentucky and our corresponding case authorities. The defendant made no argument of any kind as to juror Pustam during step three. Accordingly, she has failed to preserve the specific argument which she raises for the first time on appeal, which is based, in part, at least, on facts that are outside the record, to wit, that Pustam’s Trinidadian heritage qualifies as “African-American.” Indeed, any appellate consideration of this new argument would require this Court to (1) assume facts not within this record; and (2) more importantly, ignore the fact that defense counsel did not dispute or challenge the People’s contention that Pustam was not “African-American.”

The Court of Appeals has been clear that “[w]hen, as here, a party raises an issue of a pattern of discrimination in excluding jurors, and the court accepts the race neutral reasons given, the moving party must make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination … . The defendant’s failure to discuss juror Pustam at all during step three suggests that counsel was not challenging any comment or determination made by the Supreme Court during step two as to Pustam. Similarly, the court’s exception noted unilaterally on the record at the conclusion of step three failed to preserve any “specific” argument for the defendant on appeal, as is expressly required by the Court of Appeals. Therefore, without preservation, our analysis of this appeal cannot reach the cases of People v Pescara (162 AD3d 1772) and People v Chance (125 AD3d 993), cited by the dissent in support of a Batson reversal on the basis of skin color. People v Taylor, 2020 NY Slip Op 03807, Second Dept 7-8-20

 

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