Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Michael MARCUS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
RANDALL T. ENG, P.J., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 14, 2010, convicting him of burglary in the first degree, robbery in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
In Batson v. Kentucky 476 U.S. 79, 94–98, 106 S.Ct. 1712, 90 L.Ed.2d 69, 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 ( see People v. Smocum, 99 N.Y.2d 418, 421, 757 N.Y.S.2d 239, 786 N.E.2d 1275). 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” ( id. at 421, 757 N.Y.S.2d 239, 786 N.E.2d 1275). 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” ( People v. Allen, 86 N.Y.2d 101, 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173). 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’ ” ( People v. Hecker, 15 N.Y.3d 625, 634–635, 917 N.Y.S.2d 39, 942 N.E.2d 248,cert. denied sub nom. Black v. New York, ––– U.S. ––––, 131 S.Ct. 2117, 179 L.Ed.2d 911, quoting People v. Allen, 86 N.Y.2d at 104, 629 N.Y.S.2d 1003, 653 N.E.2d 1173), including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others ( see People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263).
In this case, the inquiry proceeded to step three. After the Supreme Court found that defense counsel was using his peremptory challenges to challenge male jurors, defense counsel challenged a male juror on the ground that the juror was a chiropractor and had stated, during voir dire, that he only “believe[d]” he could be fair. When asked whether he could be fair, that juror responded, “I know what my conscious can do. But I don't know what the subconscious [sic],” and was admonished by the court for being “technical.” The court seated the juror over defense counsel's objection, explaining that the juror initially said that he did not believe he could be fair, but later explained that he was nervous and reaffirmed his position that he could, in fact, be fair. The court did not examine the other reason for the challenge: that the juror was a chiropractor.
The juror's answer to the question of whether he could be fair, which prompted an admonition from the Supreme Court not to be “technical,” was, on its face, a nonpretextual reason to exercise a peremptory challenge. Further, the defendant contends that the fact the juror was a chiropractor was a legitimategender-neutral reason for striking the juror. The People contend that this reason was pretextual, because defense counsel did not challenge similarly situated female jurors. However, medical background was related to the facts of the case, since proof of the defendant's guilt involved DNA evidence, and defense counsel struck female jurors with similar backgrounds.
In view of the foregoing, the record does not support the Supreme Court's conclusion that defense counsel engaged in purposeful discrimination against men when he exercised a peremptory challenge against the juror seated over his objection. This error mandates reversal ( see People v. Hecker, 15 N.Y.3d at 662, 917 N.Y.S.2d 39, 942 N.E.2d 248;People v. Powell, 92 A.D.3d 610, 939 N.Y.S.2d 51).
Since there must be a new trial, we note that the defendant's recorded telephone conversations, in which he expressed a desire to kill the witnesses against him, were admissible as evidence of consciousness of guilt ( see People v. Torres, 61 A.D.3d 489, 878 N.Y.S.2d 673). However, certain comments in the prosecutor's summation, which, over objection, vouched for the strength of the People's case, repeated over and over again that the defendant wanted the witnesses to die, and speculated as to the significance of certain comments made during those telephone calls, including the identity of the getaway driver, were improper.
The defendant's remaining contentions need not be addressed in light of our determination.