Defense Counsel’s Main Reason for the Peremptory Challenges To Which the Prosecutor Objected, i.e., the Potential Jurors Had Been Crime-Victims, Was Not Pretextual

The Second Department reversed defendant’s conviction because Supreme Court improperly applied the Batson doctrine and denied defense counsel’s peremptory challenges to two jurors.  The prosecutor raised a “reverse-Batson” objection to defense peremptory challenges alleging the defense was excluding “Asian persons.”  Defense counsel offered race-neutral reasons for the peremptory challenges, the principal reason being that the potential jurors had been crime victims. Supreme Court found the proffered race-neutral reasons were pretextual.  The Second Department determined they were not:

“In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories. In step one, the moving party must make a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason. If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome. Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and the trial court must determine whether the proffered reasons are pretextual” … . A trial court’s step-three determination that the facially race-neutral reasons for a nonmoving party’s peremptory challenges to particular jurors were pretextual is entitled to great deference on appeal and will not be disturbed where such determination is supported by the record … . * * *

The record does not support the trial court’s step-three finding of fact as to the subject prospective juror, to wit, that other prospective jurors who were crime victims and who indicated that the incident would not affect them had nevertheless been seated. “[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual” … . Nonetheless, the record indicates that defense counsel treated such jurors consistently by exercising a peremptory challenge for another prospective juror who was not Asian but was a crime victim who provided assurance that nothing in her experience would affect her as a juror. In addition, although defense counsel did not exercise peremptory challenges for K.A.M. and G.A., defense counsel sufficiently distinguished the experiences of those jurors from that of the subject prospective juror, who had been robbed at gunpoint … . Consequently, the record supports a finding that defense counsel had legitimate, nonpretextual reasons for challenging prospective jurors based on their crime victim status … .People v Grant, 2015 NY Slip Op 04505, 2nd Dept 5-17-15