IN RESPONSE TO A BATSON INQUIRY, THE PROSECUTOR’S REASON FOR STRIKING THE PROSPECTIVE JUROR IN FACT RELATED TO ANOTHER PROSPECTIVE JUROR FOR WHOM DEFENDANT HAD EXERCISED A PEREMPTORY CHALLENGE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined that, in response to a Batson inquiry, the prosecutor’s reason for striking the prospective juror did not, in fact, relate to the correct prospective juror. Rather, the prosecutor’s reason related to another prospective juror for whom the defendant had exercised a peremptory challenge:

… [T]he prosecutor stated that the reason that he exercised a peremptory challenge on the prospective juror at issue was due to “her answer as to why she wanted to sit on the jury.” Specifically, the prosecutor explained that the prospective juror expressed an “odd interest in the defendant’s right to remain silent, right to testify,” and that “[t]he way she answered the question . . . was very strange.” However, … the statements the prosecutor attributed to the prospective juror at issue were, in fact, made by a prospective juror upon whom defendant exercised a peremptory strike. Because “a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make” … , “an equal protection violation was established” … .People v Douglas, 2022 NY Slip Op 01919, Fourth Dept 3-18-22

Practice Point: If, pursuant to a Batson inquiry, the prosecutor refers to answers given by the wrong prospective juror, a new trial will be ordered.