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THE TRIAL JUDGE SHOULD HAVE PROCEEDED WITH BATSON INQUIRIES FOR THREE BLACK PROSPECTIVE JURORS; BASED ON THE JUDGE’S REMARKS THE MATTER WAS REMITTED FOR A HEARING AND REPORT BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Supreme Court should have conducted a Batson inquiry with respect to the prosecutor’s exercise of peremptory challenges to three black prospective jurors. The appeal was held in abeyance and the matter was sent back for a hearing and report before a different judge. The trial judge’s remarks about the number of black jurors being representative of the community (“this is not the Bronx”) and the fact that three black jurors served were deemed irrelevant:

Contrary to the trial court’s finding that the number of black prospective jurors to actually serve on the jury (three in total) was fairly representative of the community, as represented by the court’s remark that “[t]his is not the Bronx,” such consideration is “irrelevant” to the issue of whether the People’s exercise of peremptory challenges was discriminatory … . Similarly, to the extent the People emphasize that three black prospective jurors served on the jury, that fact does not obviate the defendant’s prima facie showing of discrimination … .

Accordingly, we find that the defendant satisfied the first step of the Batson inquiry with respect to the prosecution’s exercise of peremptory challenges to each of the three black prospective jurors at issue. Thus, the trial court should have proceeded with the second step and, if applicable, the third step with respect to each of the Batson challenges … . People v Brissett, 2021 NY Slip Op 04366, Second Dept 7-15-21

 

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