Opinion
February 26, 1996
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.
The defendant contends that he was deprived of his right to exercise peremptory challenges because the Supreme Court rejected defense counsel's reasons for excluding three prospective male jurors during the second round of jury selection and ultimately seated those jurors. The defendant contends that the prosecutor failed to establish a prima facie case of purposeful gender discrimination when he argued that defense counsel had exercised his peremptory challenges to strike all but one prospective male juror from the preceding panel. This contention is unpreserved for appellate review because "defense counsel proffered [gender-] neutral explanations for his exercise of peremptory challenges without disputing the issue of whether a prima facie case of [gender] discrimination [had] been established, and the court ruled on the validity of the defense explanations" (People v. Payne, 213 A.D.2d 565; People v. Jones, 204 A.D.2d 485; People v. Alston, 214 A.D.2d 746; People v. Thomas, 210 A.D.2d 515).
Turning to the validity of defense counsel's explanations, defense counsel stated that he was challenging one prospective juror because that individual was a soccer coach with the 68th police precinct, lived in Dyker Heights, and "flinched" when there were discussions about people with prior criminal records. The court rejected counsel's basis, noting that "[t]here has to be an articulable reason, something he said, an answer he made or an answer he didn't make". The court further rejected counsel's claim that the prospective juror "flinched" as ridiculous, claiming that he did not make any bodily movement that would indicate he would treat witnesses differently.
While a trial court is generally in the best position to evaluate whether a gender-neutral explanation for the exercise of a peremptory challenge is pretextual (see, Hernandez v. New York, 500 U.S. 352; People v. Dixon, 202 A.D.2d 12), we agree with the defendant that defense counsel's explanation was improperly rejected by the trial court. Defense counsel's explanation that he was concerned about the prospective juror's association with the police is not pretextual on its face (see, People v Bennett, 206 A.D.2d 382; People v. Williams, 176 A.D.2d 245). Moreover, defense counsel's reasons were based on questions posed to the prospective juror, related to the case and based on facts elicited in the voir dire (see, People v. Richie, 217 A.D.2d 84). Thus, the defendant is entitled to a new trial.
We have considered the defendant's remaining contentions and find them to be without merit. Ritter, J.P., Thompson, Pizzuto and Hart, JJ., concur.