Opinion
July 1, 1986
On April 30, 1986, the Supreme Court ruled, in Batson v Kentucky (476 US ___, ___, 106 S Ct 1712, 1722-1723), that if a criminal defendant could establish "a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges", the burden would then shift to the prosecutor to articulate a neutral explanation for his use of the peremptory challenges in that case. The criteria for establishing a prima facie case are (1) a showing that the defendant is a member of a cognizable racial group, members of which were removed from the venire by the prosecutor's exercise of peremptory challenges; (2) a presumption that peremptory challenges, in effect, give a discriminator an opportunity to discriminate; and (3) an inference, drawn from "any * * * relevant circumstances", that these challenges were used to exclude prospective jurors on account of their race (476 US, at p ___, 106 S Ct at p 1723). Examples of "relevant circumstances" include a pattern of strikes against minority jurors, prejudicial statements and questions by the prosecutor during voir dire, and any indication that veniremen are being challenged on the assumption that they will be biased because they are of the same racial grouping as the defendant.
On a motion for mistrial, alleging racially biased use of the peremptory challenges, the Trial Judge held a hearing at which defense counsel conceded no allegation of impropriety or pattern of discrimination against the prosecutor who had selected the jury. Instead, he argued simply that the use of four of the peremptory challenges and two challenges for cause had "systematically excluded blacks" from this jury.
Whether or not a prima facie case was made out by defendant under the Batson criteria, the prosecutor did respond by reminding the court that the peremptory challenge had also been used against four white prospective jurors. One of the black veniremen who was peremptorily challenged was an expert in ballistics who had also indicated that he felt somewhat intimidated by police officers. An examination of the prosecutor's reasons for exercising challenges for cause against two of the black veniremen is also revealing on the question of whether there was a racially biased motive. For example, one said he could not convict anyone for possessing a gun. Another, whom the prosecutor indicated would have been an outstanding candidate because her family had been victimized by crime, started to break down and cry just as the prosecutor rose to question her. Out of sympathy, the prosecutor reluctantly asked the court to excuse this black woman for cause. There is no indication that defense counsel objected to this challenge for cause.
If the Supreme Court now directs that we are to examine the motives behind the use of peremptory challenges, it seems only reasonable that the challenges for cause can now also be explored in the hope of shedding light on those motives.
In summary, the Trial Judge should be commended for promptly holding a hearing on this question and, presaging the Batson decision (supra) two years hence, insisting that the hearing focus on the factual allegations surrounding the use of peremptory challenges. From a review of this record, we find convincing the prosecutor's stated goal of picking a jury made up of individuals, regardless of race, who were unsympathetic toward crime. The prosecutor's response, in discussing all six challenges against blacks, more than met the "neutral explanation" test of the Supreme Court in Batson.
Cf. People v. Hockett, 121 A.D.2d 878.
Accordingly, for the reasons stated, upon reargument we unanimously adhere to our prior decision on the appeal, reinstating the verdict and remanding for appropriate sentencing proceedings.
Concur — Kupferman, J.P., Sandler, Carro, Fein and Milonas, JJ.