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Flawed Procedure Following “Batson” Challenges to the Prosecution’s Exclusion of Two Nonwhite Jurors Required Reversal

The Third Department determined reversal and a new trial were necessary because of flaws in the procedure used following the “Batson” challenge of the prosecution’s peremptory challenges to two nonwhite members of the jury panel.  The judge denied the Batson challenges. The Third Department explained the correct procedure and the flawed procedure actually used:

A Batson challenge implicates a three-step process in which, “[a]t step one, ‘the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges'” … . “Once a prima facie showing of discrimination is made, the nonmovant must come forward with a race-neutral explanation for each challenged peremptory — step two” … . The explanation at step two is “not required to be ‘persuasive, or even plausible’; as long as the reasons for the challenges are ‘facially neutral,’ even ‘ill-founded’ reasons will suffice” … , and determining whether the step two explanation is adequate is “a question of law” … . If the nonmoving party provides an adequate explanation, “the burden then shifts back, at step three, to the moving party to persuade the court that reasons are merely a pretext for intentional discrimination” … . This step is a factual issue in which the trial court has broad discretion in determining credibility … .

Initially, we note that the Batson application, made before the end of jury selection, was timely … and any issue regarding the sufficiency of defendant’s step one showing is now moot since the People offered step two race neutral reasons for the challenged peremptory challenges … . The reasons offered by the People included, as to juror No. 19, that the father of her children had been prosecuted by the Schenectady County District Attorney’s office for robbery and “presumably” was in prison. Regarding juror No. 127, the People explained in some detail that there were jurors after her that they preferred to use to fill the twelfth and final seat. Although these reasons were facially race-neutral satisfying the People’s step two burden, defendant points out that the People’s statement regarding juror No. 19 had significant factual errors embellishing on her actual comment, and also that the People did not challenge a white juror whose sister had “been in and out of trouble for years, felonies, in trouble with the law.” As such, there were important factual issues implicating credibility that needed to be resolved at step three. However, as conceded by the People in their brief on appeal, County Court ruled on the Batson application at the conclusion of step two.

The improper compressing of a Batson inquiry does not necessarily mandate reversal, as the movant must preserve the issue as to whether a meaningful step three inquiry occurred … . Indeed, whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed … . Here, defendant sufficiently preserved the issue and the ultimate issue was not adequately addressed. After the People offered their race neutral reasons as to the second relevant juror, defendant began to respond and urged that the record was not complete. County Court stated that the record was complete and summarily denied defendant’s Batson challenge. “[T]he court did not appear to give any consideration to pretext, nor was the basis of its ruling reflected in the record”… . People v Grafton, 2015 NY Slip Op 07701, 3rd Dept 10-22-15

 

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“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained

The Third Department determined a new trial was necessary because of the denial of a “for cause” challenge to a juror who socialized with the district attorney (the case was tried by an assistant district attorney). The court explained the concept of “implied bias” which is not easily “cured:”

A statement by a potential juror suggesting a possible bias can be cured, and the juror not excused, if the juror “provide[s] ‘unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence'” … . However, where, as here, the challenge for cause involves a juror’s relationship with a trial participant, a so-called “implied bias” may be implicated which “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … . Of course, “[n]ot all relationships . . . require disqualification . . . [and] [t]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … . As a practical matter, “the trial court should lean toward disqualifying a prospective juror of dubious impartiality” … .

Here, during voir dire, juror no. 3372 stated that her family was “good friends” with the family of the District Attorney. She added that she socialized with the District Attorney, including having him and his wife as dinner guests at her home, and she and her husband had dined as guests at the District Attorney’s home. County Court nonetheless denied defendant’s challenge for cause as to such juror. People v Bedard, 2015 NY Slip Op 07703, 3rd Dept 10-22-15

 

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The Unjustified Denial of Defense Counsel’s Request to Withdraw a Peremptory Challenge Was, Under the Facts, Subject to a Harmless Error Analysis

The Second Department determined the trial court erred when it denied defense counsel’s request to withdraw a peremptory challenge to a juror. However, the error was deemed harmless because of the nature of the evidence against the defendant. On appeal the Second Department primarily addressed whether the harmless error analysis applied to the withdrawal of a peremptory challenge:

The defendant contends that the Supreme Court’s improper denial of his request to withdraw his peremptory challenge is not subject to harmless error analysis, since the error deprived him of his constitutional right to a jury in whose selection he had a voice … . We disagree. While peremptory challenges “are a mainstay in a litigant’s strategic arsenal,” they are “not a trial tool of constitutional magnitude” … . The right to exercise peremptory challenges “is protected by the Criminal Procedure Law, which provides that each party must be allowed’ an equal number of peremptory challenges and that a court must exclude’ any juror challenged” … . Therefore, “the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error” … . However, there is no statutory right to withdraw a peremptory challenge. Further, the instant case does not involve a situation in which the People attempted to peremptorily challenge a juror who had been accepted by the defense in violation of CPL 270.15(2), inasmuch as the People did not object to the defendant’s request to withdraw the peremptory challenge … . Moreover, the defendant was not prejudiced by the loss of the peremptory challenge since, at the conclusion of jury selection, defense counsel had exercised only 9 of his 15 peremptory challenges … . Accordingly, under the circumstances of this case, the error was harmless. People v Marshall, 2015 NY Slip Op 06830, 2nd Dept 9-16-15

 

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Failure to Directly Address a Juror’s Stated Bias Required Reversal—“Bright Line” Rule Explained

The Third Department, over a dissent, determined that, once the prospective juror (No. 383) expressed a bias based upon the age difference between the adult defendant and child complainant, the failure to gain the assurance from the juror that her prior state of mind will not influence her verdict and she will render an impartial verdict based solely on the evidence constituted reversible error. The fact that the juror assured the judge she would not vote to convict if she had a reasonable doubt and that she would follow the law as instructed was not enough to address the expressed age-related bias.  A juror who has expressed a bias must unambiguously assure the court she will put her bias aside:

Once a prospective juror has identified his or her own biased perspective, he or she “must expressly state that his [or her] prior state of mind concerning either the case or either of the parties will not influence his [or her] verdict, and he [or she] must also state that he [or she] will render an impartial verdict based solely on the evidence” … . “[N]othing less than a personal, unequivocal assurance of impartiality can cure a juror’s prior indication that [he or] she is predisposed against a particular defendant or particular type of case” …, and, accordingly, the “bright-line standard . . . followed throughout the state” is “that a prospective juror who expresses partiality towards [one party] and cannot unequivocally promise to set aside this bias should be removed for cause” … . * * *

Considering the entirety of the questions posed to juror No. 383 and her responses, juror No. 383 unambiguously acknowledged a form of bias — based on the respective ages of the victim and defendant — that she identified as preventing her from being a fair and impartial juror. After juror No. 383 identified her own bias, she was never asked a question that referenced whether she could set aside any biases she held, generally, or whether she could set aside her specific bias regarding the respective ages of defendant and the victim. Further, in her responses to questions posed to her, juror No. 383 never specifically made reference to the age issue after she identified it as preventing her from being fair and impartial, and she never agreed, more generally, that she could set aside any bias that she held and decide the case in a fair and impartial manner based on the evidence presented. Therefore, juror No. 383 did not “unambiguously state that, despite preexisting opinions that might indicate bias, [she would] decide the case impartially and based on the evidence,” because she never made any statement regarding her preexisting opinion, let alone an unambiguous statement that she could set such opinion aside (People v Arnold, 96 NY2d at 363)[FN3]. Accordingly, County Court committed reversible error in denying defendant’s for-cause challenge to a juror who never contradicted or retracted her statement that her bias related to the respective ages of defendant and the victim prevented her from being a fair and impartial juror … . People v Warrington, 2015 NY Slip Op 06380, 3rd Dept 7-30-15

 

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“For Cause” Challenges to Three Jurors Who Said Only They Would “Try” to Be Fair Should Have Been Granted—New Trial Required

The Second Department reversed defendant’s conviction because Supreme Court should have granted three “for cause” challenges to jurors. All three jurors expressed doubts about their abilities to be fair based upon personal experiences. All three said only that they would “try” to be fair:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence … . A prospective juror’s responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict … . * * *

At no point did the prospective jurors unequivocally state that their prior states of mind would not influence their verdict, and that they would render an impartial verdict based solely on the evidence. Under the circumstances, the Supreme Court should have granted the defense’s challenges for cause to all three prospective jurors … . People v Alvarez, 2015 NY Slip Op 06354, 2nd Dept 7-29-15

 

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Prosecutor’s Reasons for Challenging an Hispanic Juror Were Pretextual—New Trial Ordered

The Second Department determined the prosecutor’s proffered reason for challenging an Hispanic juror was pretextual and ordered a new trial. Two Hispanic jurors were challenged by the prosecutor. The prosecutor’s reason for challenging one of them was the juror’s alleged inability to understand questions. The Second Department determined there was no support for that reason in the record:

… [A] new trial is necessary because the prosecutor exercised one of her peremptory challenges in a discriminatory manner with respect to a Hispanic male prospective juror … . Under both state and federal law, the use of peremptory challenges in a racially discriminatory manner is prohibited … . Trial courts must follow a three-step protocol to determine whether a party has used its peremptory challenges in a racially discriminatory manner. First, the moving party contesting the peremptory challenges must allege sufficient facts to make a prima facie showing that the prospective jurors were challenged because of race … . Where the moving party makes such a prima facie showing, the burden shifts to the nonmoving party to offer a race-neutral reason for each of the disputed peremptory challenges … . If such reasons are offered, the burden shifts back to the moving party to demonstrate that the reasons, although facially neutral, are pretextual … . The third step requires the trial court to make an ultimate determination as to whether the proffered reasons are pretextual … . * * *

Contrary to the trial court’s determination, the facially race-neutral reason proffered by the prosecutor for exercising a peremptory challenge with respect to the Hispanic male prospective juror was pretextual. Although the prosecutor argued that this prospective juror had a difficult time understanding the trial court’s questions during voir dire, this claim is not borne out by the record. Rather, the record shows that the prospective juror was repeatedly asked the same question regarding his willingness to follow the law and assured the trial court more than once that he would follow the law as it was provided. While this prospective juror asked for one of the court’s questions to be repeated, and expressed that he did not understand compound questions when they were asked of him, never during the questioning by the trial court did he give a conflicting answer or state that he would not or could not follow the law. Indeed, any appearance of a lack of understanding on the part of this prospective juror is attributable to confusion caused by the manner in which the trial court intervened during the prosecutor’s questioning of the juror: while a question was pending before the juror, the court asked compound questions of him.

Moreover, the prosecutor’s failure to pursue questioning of this prospective juror, whom she purportedly believed could not follow the law, despite repeated assurances by the prospective juror to the contrary, also renders the basis for the challenge pretextual … . People v Fabregas, 2015 NY Slip Op 06253, 2nd Dept 7-22-15

 

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Warrantless Entry Into Defendant’s Home Justified by Exigent Circumstances—Juror’s Temporary Absence from the Trial (During Which the Trial Was Adjourned) and the Juror’s Inaccurate Statement He Had Discussed His Absence with the Judge Did Not Warrant a “Buford” Hearing or Disqualification

The First Department, in a full-fledged opinion by Justice Degrasse, affirmed defendant’s conviction, finding that the warrantless entry into defendant’s home to arrest him was justified by exigent circumstances and did not, therefore, constitute a “Payton” violation. The First Department further found that a juror’s temporary absence from the trial (during which the trial was adjourned), and the juror’s inaccurate statement he had discussed his absence with the judge, did not reveal juror bias and did not therefore warrant a “Buford” hearing or disqualification of the juror:

…[T]he motion court resolved the Payton issue, finding the detectives’ entry into defendant’s home justified by exigent circumstances.

Factors to be considered in determining whether exigent circumstances are present include “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause … to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” … .

This list of factors is illustrative and not exhaustive … . The court’s finding of exigent circumstances is supported by evidence in the record that defendant had been identified by name and from a photograph as the assailant who shot the two men at the bar only hours before. Accordingly, there was probable cause for defendant’s arrest. Moreover, the Nissan Armada was traced to defendant’s nearby address where there was reason to believe he could be found. There was reason to believe defendant was armed inasmuch as he was said to have left the bar with his weapon. The record also supports the court’s conclusion that the circumstances of the Police Department’s entry into the apartment were peaceful. * * *

Defendant next argues that the court erred in failing to conduct an inquiry pursuant to People v Buford (69 NY2d 290 [1987]) with respect to a juror’s absence on a trial day. On February 7, 2012, during the third week of trial, juror number nine failed to appear at court and could not be reached by court personnel. With the consent of counsel, the court adjourned the trial for two days in order to enable a court officer to check on the juror at his home. On the adjourned date, the court officer reported that she met with juror number nine who told her that he wasn’t feeling well and that he had told Justice Webber that he would return to court on February 9, 2012. It was undisputed that no such conversation between the court and the juror occurred. The court decided to continue with the trial and address the juror’s conduct at its conclusion. Defense counsel stated that he was concerned about the juror’s fitness to continue with the trial. The court declined to conduct the requested inquiry and the trial continued to verdict. Defendant argues that the court erred in denying his request for a Buford inquiry. We disagree.

To the extent applicable, CPL 270.35(1) provides that a court must discharge a sworn juror where “the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial . . .” Defendant does not argue on appeal that the juror was grossly unqualified or that his apparent misconduct was substantial. Defendant’s only claim of error stems from the court’s refusal to conduct a Buford inquiry. Viewed in light of the request made before the trial court, defendant’s argument is based on a misconstruction of Buford. As stated by the Court of Appeals, the purpose of Buford was the creation of “a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may possess[] a state of mind which would prevent the rendering of an impartial verdict'” … . A juror with such a state of mind would be “grossly unqualified” … . * * *

… [I]t cannot be seriously argued in this case that juror number nine’s temporary absence from the trial and his inaccurate statement to the court officer indicated bias one way or the other. People v Paulino, 2015 NY Slip Op 05898, 1st Dept 7-7-15

 

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Defendant’s Motion to Vacate His Conviction, Supported by Evidence that (1) the People May Have Violated Their “Brady” Obligation to Inform the Defense of a Plea Deal Made In Return for Testimony and (2) a Juror May Have Had a Mental Disability, Should Not Have Been Denied Without a Hearing

The Fourth Department determined defendant had made sufficient evidentiary showings that (1) the People may have failed to inform the defense of a plea bargain made with the codefendant in return for testimony against the defendant, and (2) a juror may have been unqualified due to a mental disability.  Therefore defendant’s motion to vacate his conviction should not have been denied without a hearing;

Defendant moved to vacate the judgment on two grounds, neither of which may be decided without a hearing. First, he contended that the People violated their Brady obligation because they failed to disclose that they made a specific plea agreement with the codefendant at the start of the proceedings, contingent upon the codefendant testifying against defendant. Defendant contended that the People effectuated that agreement by, among other things, obtaining an indictment charging the codefendant with a lower level crime than the class B violent felony that was lodged against defendant, to avoid the plea bargaining restrictions in CPL 220.10 (5) (d) (ii), and by agreeing that the codefendant could withdraw his plea to the lower level felony and plead guilty to a misdemeanor if he cooperated against defendant. Defendant submitted evidence in support of his contentions, including transcripts of the prosecutor’s statements in the codefendant’s case regarding the agreement, and those transcripts also established that the prosecutor had discussed the agreement with the victim before it was implemented. * * *

The second ground advanced by defendant in support of his CPL article 440 motion was that a juror lacked the capacity to serve on the jury, and that the juror had misrepresented his employment status in response to questioning by the court. Defendant submitted some evidence establishing that the prospective juror may be developmentally disabled and that he may have misrepresented his prior and current employment, but defendant’s investigator was unable to obtain more information without judicial subpoenas that the court declined to provide. Inasmuch as defendant submitted evidence that called into question “whether this particular juror should have been entrusted with the responsibilities of fact finding [because the juror] did not understand the lawyers or the judge” …, the court further erred in denying the motion on the ground that the issue could be decided on direct appeal. People v Bailey, 2015 NY Slip Op 04987, 4th Dept 6-12-15

 

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Sworn Juror Who Was From the Same Neighborhood as Defendant Stated His Fear of Drug Dealers Would Prevent Him from Reaching an Impartial Verdict—the Juror Was Properly Discharged as “Grossly Unqualified” and “For Cause” Based Upon a Newly Discovered Ground

The First Department determined a sworn juror was properly discharged as “grossly unqualified,” as well as “for cause.” The juror lived in the neighborhood where the crime occurred and where defendant and his accomplices lived. The juror told the court that his fear of drug dealers in his neighborhood would prevent him from reaching an impartial verdict. The juror had not mentioned his fear before he was sworn:

The juror’s fear provided grounds for the court to dismiss him as “grossly unqualified to serve” pursuant to CPL 270.35(1), even if the court did not cite the statutory phrasing, because it was clear that the juror could not remain impartial. Additionally, since the juror had not mentioned that he feared for his safety when questioned by the court and the parties before being sworn, he was properly discharged for cause, on a newly discovered ground, pursuant to CPL 270.15(4). People v Ward, 2015 NY Slip Op 04928, 1st Dept 6-11-15

 

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Reverse-Batson Challenge to the Peremptory Challenge of a White Woman by Defense Counsel Properly Sustained/Judge’s Failure to Inform and Seek the Input of the Parties Re: a Jury Note Was a Mode of Proceedings Error Requiring Reversal

The Second Department determined the trial judge properly sustained the prosecutor’s “reverse-Batson” challenge to a peremptory challenge to a white woman by defense counsel.  Defense counsel’s proffered reason, that the juror had her head down and would be a “wall flower” following others on the jury, was deemed pretextual.  The proffered reason was entirely subjective and was not based upon the voir dire.  Reversal of the conviction was warranted, however, because the trial judge did not inform and seek the input of the parties in response to a jury.  Preservation of the error was not required because the record did not reflect that defense counsel was made aware of the contents of the note prior to the judge’s answering it in the jury’s presence:

“Although not entirely insulated from review, the determination of whether an explanation [of the exercise of a peremptory challenge to a a juror in response to a reverse-Batson challenge by the prosecutor] is merely pretextual is generally a matter for the Trial Judge, whose findings are entitled to great deference” … . This is particularly true where, as here, the reason for challenging a prospective juror is based upon certain nonverbal responses and reactions of the prospective juror, which the trial court had the opportunity to observe … . However, “[a]lthough a proffered race- [or gender-] neutral explanation for the exclusion of a potential juror need not rise to the level required to challenge a venireperson for cause,’ . . . the burden cannot be met by merely claiming good faith and denying discriminatory purpose” … . Here, the reason proffered by defense counsel for exercising the peremptory challenge against the subject prospective juror was that, during voir dire, “[s]he had her head down the entire time and was kind of looking down through this process,” from which counsel concluded that she was “going to be a wall flower[ ] and just kind[ ] of go with the flow.” This explanation was purely intuitive and based on counsel’s subjective impression rather than upon facts adduced at voir dire … . To accept the defendant’s bare assertion, unsupported by any factual basis, that the prospective juror was neutral and would not be a strong juror for the defense would be, in effect, to accept no reason at all … . There is nothing in the record to support defense counsel’s purported conclusion that this prospective juror—a 68-year-old sales associate who had previously sat on a jury, did not know anyone in law enforcement, and, unlike many of the prospective jurors, had not been the victim of a crime—would be a weak juror for the defense. * * *

… [T]he jury advised: “We have one juror that feels she cannot make a decision based on the evidence presented to us.” Instead of marking the note as an exhibit and reading it aloud on the record to the parties prior to calling in the jury, the court read the note on the record for the first time in front of the jurors, and then immediately responded by issuing a truncated Allen charge …, encouraging continuing deliberations. This jury note “called for a substantive response that required careful crafting after hearing argument from both the People and the defense” … . Yet there is no indication that the court provided notice to defense counsel and the prosecutor of the contents of the note or “a full opportunity to suggest appropriate responses” … . “[B]y depriving the defendant of meaningful notice of the communication [and] a meaningful opportunity to participate in the formulation of the court’s response,” the court failed to fulfill its “core responsibility” under CPL 310.30, thereby committing an error affecting “the mode of the proceedings” … . Such an error “need not be preserved, and prejudice manifestly results” … . Thus, despite defense counsel’s failure to object to the Supreme Court’s handling of the jury’s notes, reversal is required … .

The People are correct that a timely objection to an alleged O’Rama error may be required where defense counsel had “knowledge of the substance of the court’s intended response” … . However, while the record shows that a discussion was held off the record at the sidebar immediately before the Supreme Court directed the court officer to “bring them in,” it is not evident from the record that defense counsel had knowledge of the contents of the note or how the court would respond to the note. Rather, as far as the record reveals, defense counsel first learned of the court’s response at the same time the jury heard it … . Where a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to … . People v Brown, 2015 NY Slip Op 04860, 2nd Dept 6-10-15

 

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