Summary
denying a Batson claim because the defendant had not specified before the trial judge that the claim was based on both race and gender but had suggested that it was based on race alone
Summary of this case from Caston v. CostelloOpinion
Argued December 1, 1994
Decided December 22, 1994
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Randall T. Eng, J.
Barbara Zolot, New York City, Richard Joselson and Philip L. Weinstein for appellant.
Richard A. Brown, District Attorney of Queens County, Kew Gardens (Gregory C. Pavlides and Steven J. Chananie of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's claim that the prosecutor's use of peremptory challenges to strike African-American women from the jury violated the ruling of Batson v Kentucky ( 476 U.S. 79) is not preserved for our review.
In 1986, the Supreme Court ruled in Batson that a prosecutor's use of peremptory challenges to deliberately exclude African-Americans from the jury solely on the basis of their race unconstitutionally discriminated against the excluded jurors. Not until this year did that Court extend the equal protection analysis of Batson to include discriminatory strikes based on the gender of the prospective juror (see, J.E.B. v Alabama ex rel. T.B., 511 US ___, 114 S Ct 1419). Thus, at the time of defendant's 1991 trial, neither this Court nor the Supreme Court had ruled that a Batson claim could be based, in whole or in part, on impermissible gender discrimination.
Defendant's claim that African-American women, because they have been subjected to a particularized form of discrimination based on the combination of their race with their gender, constitute a separately cognizable group for Batson purposes was not asserted either implicitly or explicitly before the trial court. Although defense counsel alluded on occasion to the gender of the excluded members of the venire, it is clear that his use of gender terms was purely descriptive, not categorical. Defense counsel objected to the prosecutor's exclusion of "black female jurors" and "black woman jurors", but objected as well to the exclusion of "black males" and, most frequently, the exclusion of "black jurors". Moreover, defendant's motion for a mistrial was based solely on the race of the jurors peremptorily dismissed by the prosecutor. Defendant's Batson claim was thus never articulated as one based on a combination of race and gender, and never presented to the trial court in those terms. The trial court's remarks make it clear that the court understood that defendant's Batson claim was grounded solely in the race of the excluded jurors, and defense counsel did not attempt to clarify for the court that his objection had any gender-based component. The general rule requiring a defendant to preserve his claims for appellate review ordinarily applies to claims of error involving State and Federal constitutional rights, and defendant is accordingly foreclosed from arguing before this Court that African-American women constitute a cognizable group for purposes of the Batson analysis (see, People v Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914).
We have considered defendant's remaining contention and find it without merit.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.