THE TRIAL JUDGE DID NOT FOLLOW THE REQUISITE PROCEDURE FOR A BATSON INQUIRY; MATTER REMITTED TO ALLOW THE JUDGE TO RULE ON WHETHER THE PROSECUTOR’S REASON FOR EXCLUDING A JUROR WAS PRETEXTUAL; THE APPEAL WAS CONSIDERED DESPITE A FAILURE TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department, remitting the matter to allow the trial judge to make a “Batson” finding, determined that the judge did not follow the required “Batson” procedure. The issue was considered despite the failure to preserve the error:

It is uncontested that defendant triggered a Batson challenge when he objected to the People’s peremptory challenge of the only two jurors who were perceived by defendant to be of the same racial group — satisfying step one … . Although the prosecutor offered a race-neutral reason for each juror at step two, County Court merged the step two and three requirements by immediately denying the objection without first allowing defense counsel to make an argument that the reasons were pretextual, thereby “squeez[ing] the process into a functional bypass of the key, final protocol [the Court of Appeals has] put in place” … . Such “practice falls short of a meaningful inquiry into the question of discrimination” … , particularly because the court’s consideration of pretext cannot be discerned from the record … .

While we are mindful of defense counsel’s failure to preserve this issue, given the magnitude of the error, we take corrective action in the interest of justice because the process here was woefully inadequate to satisfy the safeguards enshrined by Batson to every defendant (see CPL 470.15 [6] [a] …). Therefore, since the issue of pretext is a question of fact for the trial court to assess the prosecutor’s credibility against the challenged juror’s demeanor and language capabilities, which is an inquiry appellate courts are unable to address at step three, “we withhold decision and remit this case to [County] Court to enable the trial judge who presided over this matter to determine whether the race-neutral reason proffered by the People was pretextual” … . People v Duplessis, 2026 NY Slip Op 02170, Second Dept 4-9-26

Practice Point: Here the trial judge did not follow the required steps for determining a Batson challenge to the elimination of a juror by the prosecutor.