Summary
In Hernandez, the People did not dispute, neither at the trial court, nor in the New York Court of Appeals, nor in the United States Supreme Court, that the defendant had established a prima facie case of discrimination against persons of Hispanic descent (see, Hernandez v. New York, supra, at 378 [dissenting opn of Stevens, J.]; People v. Hernandez, 75 N.Y.2d 350, 356, supra).
Summary of this case from People v. StiffOpinion
Argued January 4, 1990
Decided February 22, 1990
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Gerald J. Beldock, J.
Robert M. Pitler and Daniel E. Rosenfeld for appellant.
Charles J. Hynes, District Attorney (Carol Teague Schwartzkopf and Barbara D. Underwood of counsel), for respondent. Guy C. Quinlan, Kenneth Kimerling and Kathleen A. Murray for Puerto Rican Legal Defense and Education Fund, Inc., amicus curiae.
Defendant's essential argument attacks the judgment of conviction as having been secured in violation of his equal protection rights because, as he asserts, the prosecution discriminatorily exercised its peremptory challenges to exclude two Latino persons from the jury that ultimately found him guilty of two counts each of attempted murder and criminal possession of a weapon (see, Batson v Kentucky, 476 U.S. 79). Defendant, also a Latino, satisfied the Batson ( 476 U.S. 79, supra) threshold predicate of discriminatory use of peremptory challenges by the prosecutor's rejection of all the Latino prospective jurors.
The dispositive issue — circumscribed in this case by pertinent undisturbed factual findings — is whether the prosecution can be said to have failed to satisfy its burden, in turn, to come forward with a neutral explanation for its eschewal of those prospective jurors so as to refute the inference of purposeful discrimination. The two prospective jurors at issue, who were fluent in Spanish, indicated, according to the prosecutor's articulated belief, that they would only try to respect as authoritative the official court interpreter's translation of evidence given by Spanish-speaking witnesses. This prosecutorial assertion, sufficiently documented by the record and supported in the findings of the two lower courts, warrants our concluding that the prosecutor fulfilled his burden of coming forward with a satisfactory explanation that the peremptory strikes in this case were neutral and nondiscriminatory. We thus affirm the order of the Appellate Division which had affirmed the conviction.
The conviction, after a jury trial, arose out of a shooting in which defendant had attempted to kill his young woman friend and her mother as they left a restaurant in Brooklyn. During the incident, random shots from defendant's gun struck and wounded two other patrons of the restaurant.
Prior to trial and after the voir dire examination of 63 jurors had been completed and nine jurors had been selected, defense counsel objected to the prosecutor's use of peremptory challenges excusing four potential jurors with Latino surnames. Over the course of an extensive record colloquy, defense counsel objected repeatedly that the prosecutor had removed every Latino from the venire and moved for a mistrial.
The Assistant District Attorney responded that he had challenged two of the jurors, Munoz and Rivera, because each had a brother who had been prosecuted by the same District Attorney's office and that in his opinion these jurors could not be fair in their deliberations on the case. The prosecutor further explained that he had challenged the other two jurors, Mikus and Gonzalez — the only jurors pertinent to the disposition of the issue before us — because each had given him a basis to believe from words and actions that their Spanish language fluency might create difficulties in their accepting the official court interpreter's translation of the testimony of the Spanish-speaking witnesses. Among selected expressions made during the colloquy, the prosecutor proffered this summary for the record: "ASSISTANT DISTRICT ATTORNEY: Your Honor, my reason for rejecting the — these two jurors — I'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter. * * * We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that in a case where the interpreter will be for the main witnesses, they would have an undue impact on the jury." (Appellant's appendix, at A-23 — A-24 [emphasis added]; see also, appellant's appendix, at A-26 — A-28, A-29). The trial court then denied defendant's mistrial motion, stating: "THE COURT: Therefore, he [Assistant District Attorney] didn't make a challenge for cause based upon that, but he said the reason that he did in fact remove these jurors is because even though they said they could listen to what the interpreter said and not let their own evaluation of what the witness says be the answer that they would utilize, he said I have grave doubts, and that's why I'm asking". (Appendix, at A-32 [emphasis added].) The case was tried with no Latinos on the jury and defendant was convicted. The Appellate Division affirmed the judgment of conviction and a Judge of this court granted leave to appeal.
New York's Criminal Procedure Law provides a method for both the prosecution and defense counsel to challenge for cause the selection of a potential juror if it can be shown that bias may prevent that juror from deciding the case impartially (CPL 270.20). Additionally, a limited number of peremptory challenges — because counsel may intuit a bias that is not documentarily demonstrable sufficient for a challenge for cause — are allowed to exclude jurors usually without any explanation (CPL 270.25).
The 1986 rule in Batson v Kentucky ( 476 U.S. 79, supra) added restrictions to the exercise by prosecutors of their peremptory challenges against members of a defendant's racial class. It abandoned the prosecutorially weighted evidentiary tilt of Swain v Alabama ( 380 U.S. 202) and imposed a new and important calculus. To succeed initially in erecting the presumption of purposeful discrimination, the defendant must demonstrate (1) membership in a "cognizable racial group"; (2) the exercise of peremptory challenges by the prosecutor to exclude members of the defendant's group; and (3) "facts and any other relevant circumstances rais[ing] an inference" of a discriminatory purpose (Batson v Kentucky, supra, at 96).
At that point the burden shifts to the prosecution to come forward and overcome the attribution and inference of purposeful discrimination with an articulable neutral explanation for having excused those jurors. The prosecutor's explanation need not rise to the level for sustaining a challenge for cause. On the other hand, the prosecutor cannot simply state that rejecting the jurors rested on the assumption they might be favorably disposed to the defendant because of shared race or ethnic similarities. While the prosecutor has this burden of coming forward, "the ultimate burden of persuasion" must be carried by the person alleging the intentional discrimination (Batson v Kentucky, supra, at 94, n 18). By these respective weights, Batson calibrates the test and burdens while supplying a potent and appropriate remedy against invidious petit jury discrimination.
In People v Scott ( 70 N.Y.2d 420), we applied the Batson rule retroactively under Griffith v Kentucky ( 479 U.S. 314). Defendant, a black woman, was charged with murdering and robbing a white man. There were five black prospective jurors in the venire and the prosecutor excused them all peremptorily. We held that the prosecutor's "`pattern' of strikes" gave rise to an inference of discrimination satisfying defendant's lighter burden (People v Scott, supra, at 425-426). We reversed without having to address in that case the issue of what constitutes a neutral explanation under Batson.
Here, no one challenges the triggering of Batson's threshold. The exercise of prosecutorial peremptory challenges to exclude the only Latino jurors in the prosecution of a Latino defendant is enough (Batson v Kentucky, 476 US, supra, at 96-97; People v Scott, 70 N.Y.2d 420, supra). The only new issue, circumscribed here by pertinent undisturbed factual findings, is whether the prosecution responded with a satisfactory nondiscriminatory explanation for excluding the only Latino jurors. Defendant contends as a matter of law that the burden has not been met because the Latino origins and the Spanish language are so inextricably intertwined that an exclusion of Latinos on the basis of language is inescapably, almost irrefutably, an exclusion on forbidden ethnic or racial grounds.
These jurors, however, were challenged because they indicated their knowledge of the Spanish language might interfere with their sworn responsibility as jurors to accept the official translation of the Spanish-proffered testimony. So it cannot be, as defendant has posed it and as the dissenting opinion would conclude, that the isolated language-ethnic identity factor alone determines this case.
Rather, the prosecutor's belief was that the two Spanish-speaking jurors might be unable or unwilling to accept the evidence properly submitted to them by the court. That is a legitimate neutral ground for exercising a peremptory challenge, and it was for the trial court to determine if the prosecutor's explanation was pretextual or real and justified by the answers and conduct of the two jurors during voir dire. Indeed, the Supreme Court itself recognized that resolution of these issues springing from the Batson test were rightly reposed in fact-finding courts entitled to "great deference" with customary appellate oversight (Batson v Kentucky, 476 US, supra, at 97-98, n 21). That reasonable minds could disagree at this level of review on this record demonstrates the wisdom and propriety of the Supreme Court's and our view that, in the distribution of judicial functions among courts, deference generally to the fact-finding and evidence-viewing court is warranted in these circumstances. The trial court accepted the prosecutor's explanation, as did the Appellate Division, and we have no basis in law or policy to conclude that those courts erred in these essentially factual determinations.
Indeed, the prosecution documented its belief on the jurors' statements and on doubt-raising body language descriptions (e.g., averted eyes and gazes on being questioned on the critical points) developed during an extensive voir dire and placed on the record before the Trial Justice, who was also present at the entire voir dire. The record-based beliefs, advanced to satisfy its Batson-based burden, do not appear to us as a matter of law and did not appear to the lower courts as a matter of fact to be some facial facade. If the court was not satisfied with the adequacy of this explanation after watching and listening to the proceedings, of course it could have conducted a further voir dire; but under the circumstances presented here, that was a matter within the trial court's discretion.
The burden, moreover, does not require the prosecution, as the dissenting opinion would, to come forward with reasons rising, in effect and function, to a sustainable challenge for cause, for that would extend Batson and Scott, not apply them. Justice Powell's opinion for the Supreme Court in Batson is the primary source of guidance and development, and it is carefully modulated to require that the prosecution must show only a neutral record-based belief for exercising a now properly circumscribed statutory right of peremptory excusal of jurors. To bear a proper and balanced burden of coming forward with a neutral explanation of a peremptory excusal of a juror is one thing; to create a new, higher burden of disproving, under "enhanced scrutiny" and the "inherently suspect" classification, a subjective, even "unconscious," state of mind is quite something else. This would be practically and legally speaking an impossible and ultimate burden of proof, not the lesser burden of coming forward with a justifiable explanation. Indeed, this rule would not just circumscribe the exercise of a peremptory challenge by the People; it would change its very nature because the People would have to prove cause for removal as to the juror and absolute purity as to themselves.
In sum, we view quite straightforwardly the essence of this case as being really about a prosecutor's court-accepted explanation concerning the ability of these jurors — or any sworn jurors no matter their race or ethnic similarities — to decide a case on the official evidence before them, not on their own personal expertise or language proficiency (compare, People v Legister, 75 N.Y.2d 832). Hesitancy or uncertainty about being able to decide the case on the same evidence which binds every member of a jury is a proper, neutral and nondiscriminatory basis for the prosecutorial exercise of peremptory challenges. The findings here of a legitimately articulated reason rooted in principles of jury selection, responsibility and function are valid and supportable in this record.
It is important to emphasize, however, that pretextual maneuvering or less verifiable manifestations of jurors' attitudes about adhering to governing instructions will not satisfy the prosecution's burden. Thus, our holding in no way diminishes the apodictic policy and precedents at issue, which we unequivocally reaffirm.
Our analysis of the record and issues of this case on the merits would produce the same result under the Federal and State equal protection right, as no justification for breaking new ground as to this clause by differentiating between this dually protected constitutional right is sufficiently advanced (see, Under 21 v City of New York, 65 N.Y.2d 344, 360; Matter of Esler v Walters, 56 N.Y.2d 306, 313-314).
Defendant's remaining contentions of evidentiary trial errors involving impeachment, bolstering and cross-examination are unavailing, because in the circumstances of this case these matters were within the range of the trial court's discretion.
There being no equal protection violation or any other error warranting disturbing the actions of the courts below, the order of the Appellate Division should be affirmed.
Chief Judge WACHTLER and Judges SIMONS and TITONE concur with Judge BELLACOSA; Judge TITONE concurs in a separate opinion; Judge KAYE dissents and votes to reverse in another opinion in which Judge HANCOCK, JR., concurs; Judge ALEXANDER taking no part.
Order affirmed.
I am in complete agreement with and wholeheartedly join in the majority opinion by Judge Bellacosa. In addition, the posture in which the Batson question is presented here prompts me to set forth my own, strongly held beliefs on the subject of post- Batson peremptory challenges.
In his concurrence in Batson v Kentucky ( 476 U.S. 79, 102-108), Justice Marshall made the observation that the potential for racial discrimination is inherent in the very notion of a system of juror challenges that need not be explained. He further noted that a prosecutor's seemingly neutral verbiage explaining his use of peremptories can easily mask an underlying racist animus, whether conscious or unconscious, adding another layer of complexity to the trial court's task of assessing the propriety of the proffered explanation.
Justice Marshall's comments highlight for me the very profound difficulties involved in reconciling a juror challenge system that is theoretically based on the attorney's inexplicable personal hunch with a constitutional rule that requires attorneys to offer satisfactory "neutral" explanations for their choices. The mandated inquiry, as it is conceived in both the majority and the dissenting opinions, entails an analysis that looks beyond the prosecutor's stated explanation in certain instances, and considers the prosecutor's subjective motivations and state of mind. The inquiry thus renders what was originally to be a matter of unexplained choice into an exploration that is in some respects more complex, and certainly more intrusive, than the objective inquiry involved in resolving juror challenges for cause. Moreover, because, as the dissenter notes, racist motives are easily concealed, there is no assurance that even an in-depth inquiry will be effective in eradicating racial bias in the jury selection process.
The Supreme Court's decision in Batson was a welcome, necessary and important judicial statement that racial bias and racist motivations have no place in our American courtrooms. In the final analysis, however, the most significant development to come out of Batson may well lie in Justice Marshall's observation that "only by banning peremptories entirely can such discrimination be ended." ( 476 US, at 108.) Even Batson, as Justice Marshall noted, permits a degree of discrimination by establishing a threshold test for a prima facie case that tolerates some number of unexplained ethnically targeted challenges ( 476 US, at 105 ["(p)rosecutors are left free to discriminate * * * provided that they hold that discrimination to an `acceptable level'"]). Manifestly, an institution that furnishes the opportunity for racial discrimination, at any level, is — and will continue to be — highly problematic in a society that has grown increasingly intolerant of judgments made on the basis of stereotyping in any form.
At this point in the evolution of this legal issue, I suspect that rather than developing a complex set of judicially imposed limitations and standards, the most constructive course would be for the Legislature to take a hard look at the existing peremptory system with a view toward determining whether it is still viable, at least as it is presently constituted. Whether or not Justice Marshall was correct in his assumption that the historic institution of peremptory challenges simply cannot be purged of its potential for discriminatory practices, it has become increasingly clear that judicial efforts to accomplish that goal can lead only to new layers of inquiry and complex tests that are fundamentally incompatible with the institution's basic premise (see, People v McCray, 57 N.Y.2d 542, 545-549). While such efforts can and must continue to be made, it seems to me that the time is fast approaching for the Legislature to rethink its policy choices in this highly sensitive area of law.
It may well be that a system with a drastically reduced number of peremptories for each side would adequately serve the essential purpose of permitting some unexplained juror challenges (see, People v McCray, 57 N.Y.2d 542, 547-549), while at the same time minimizing the opportunity for and incentives to engage in purposeful discrimination.
The special importance of this appeal is that it calls upon us, for the first time, to spell out the People's burden once a defendant has established a prima facie case of discrimination in the exercise of peremptory challenges. The United States Supreme Court has not yet been required to do that; nor has our only other opinion on point — People v Scott ( 70 N.Y.2d 420). By this case we thus set a course for the future in this State, marking out the tolerable limits for the People's exercise of peremptory challenges.
The course we now set, I believe, diminishes the declared principle that peremptory challenges cannot be used to discriminate against racial or ethnic groups. As Justice Marshall cautioned in Batson v Kentucky, "[a]ny prosecutor can easily assert facially neutral reasons for striking a juror". ( 476 U.S. 79, 106.) If that is all that is required, the majority's decision proves his point that there is indeed little real protection in defendant's newly recognized equal protection right. I therefore respectfully dissent.
Preliminarily, this case should be decided as a matter of State law, rather than Federal law (majority opn, at 358).
Issues involving the proper exercise of peremptory challenges are especially suited to resolution as a matter of State law at this time. As Justice White made clear in his Batson concurrence, "[m]uch litigation will be required to spell out the contours of the Court's equal protection holding today, and the significant effect it will have on the conduct of criminal trials cannot be gainsaid." ( 476 US, at 102.) In a matter of such day-to-day vital importance locally, the citizens of this State would be well served by the development of an authoritative body of State law instead of being held in suspense, case-by-case, over the next decade of litigation while the United States Supreme Court fleshes out the newly recognized minimum equal protection right that will prevail across the Nation. Several other State courts do exactly this. Indeed, the independent development of State law concerning peremptory challenges has proved particularly beneficial nationally as well as locally. It was, after all, State courts independently construing their State Constitutions that ultimately led the Supreme Court in Batson to abandon Swain v Alabama ( 380 U.S. 202) and follow "the lead of number of state courts construing their State's Constitution." (See, Batson v Kentucky, supra, at 82, n 1.)
Moreover, it cannot be assumed that State law would proceed in lockstep with Federal law as the Federal law on this issue emerges. While this court in People v McCray ( 57 N.Y.2d 542, cert denied 461 U.S. 961) declined to read the State equal protection right differently from then-existing Federal law, Batson has effected a very significant change in Federal law that might well alter that conclusion. Just such a shift occurred only recently with respect to the exclusionary rule (see, People v P.J. Video, 68 N.Y.2d 296, cert denied 479 U.S. 1091; see also, People v Johnson, 66 N.Y.2d 398, 411 [Titone, J., concurring]).
Thus, I would decide this case as a matter of State law, agreeing with the observation of the New Jersey Supreme Court that the fact "[t]hat the United States Supreme Court has overruled Swain in Batson does not mean that the laboratories operated by leading state courts should now close up shop." (State v Gilmore, 103 N.J. 508, 522, 511 A.2d 1150, 1157.)
Reaching the merits, if our review of the prosecutor's conduct is to become merely a matter of identifying undisturbed findings of fact with some support in the record, or deferring to the trial court and Appellate Division or to the prosecutor's assertion of some ostensibly neutral ground, then the role of this court in defining and protecting defendant's nascent constitutional right has been virtually surrendered at the outset. While the Trial Judge's observations of the unfolding events are of course important, there is still a significant role for this court in clearly articulating the standard and then determining the law question whether the People have satisfied that standard. That has not been done.
This case differs from other "Batson" cases in a critical respect that is not sufficiently credited by the majority. Here, the prosecutor's "neutral" explanation is one that necessarily produces disparate impact on a single ethnic group. The statistics before us indicate that, in Kings County, virtually all Latinos speak Spanish at home. That this case additionally involves testimony of witnesses in Spanish and an official translator hardly minimizes the potential for disparate impact: we are advised that the State court system employs 113 Spanish translators — presumably rendering accurate translations in court proceedings — who are engaged more than 250 times a day. Accepting as a sufficient explanation that the prosecution will offer the testimony of a witness whose native tongue is Spanish — whether or not an interpreter is required — too easily circumvents the People's obligation and the defendant's right, and allows the prosecutor to do by indirection what can no longer be done directly.
An explanation by a prosecutor that may appear facially neutral but nonetheless has a disparate impact on members of defendant's racial or ethnic group is "inherently suspect." (Serr Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of A Delicate Balance, 79 J Crim L Criminology 1, 54 [1988].) Consequently, a reason that is grounded largely in speculation rather than facts uncovered in a voir dire examination, as revealed by the record, should not be accepted (see, State v Slappy, 522 So.2d 18 [Fla]; Gamble v State, 257 Ga. 325, 357 S.E.2d 792; State v Gilmore, supra; see also, 2 LaFave Israel, Criminal Procedure § 21.3 [1989 Pocket Part]). To conclude otherwise can too easily permit discriminatory practices to continue. "`[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.' * * * A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective [Latino] juror is `sullen,' or `distant,' a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported. * * * [P]rosecutor's peremptories are based on their `seat-of-the-pants instincts' * * * Yet `seat-of-the-pants instincts' may often be just another term for racial prejudice." (Batson v Kentucky, 476 US, supra, at 106 [Marshall, J., concurring].)
Here, there is not a sufficient evidentiary record to support the prosecutor's explanation. Two persons believed to be of "Spanish descent" were excluded because their Spanish language fluency "might interfere with their sworn responsibility as jurors to accept the official translation of the Spanish-proffered testimony." (Majority opn, at 356.) The majority skews the issue when it states that this case is really about these jurors' ability "to decide [the] case on the official evidence before them, not on their own personal expertise or language proficiency" (majority opn, at 357); if that were so they undoubtedly would have been excused for cause. Despite this court's repeated reference to the two jurors' initial expressed uncertainty or hesitancy, the fact remains that both individuals satisfied the court that they would accept the official court translation, and that they would be fair and impartial jurors. As the Trial Judge stated on the record, the two jurors "said they could listen to what the interpreter said and not let their own evaluation of what the witness says be the answer that they would utilize." Similarly, the prosecutor acknowledged that the jurors' "final answer was they could do it" (i.e., accept the official court translation as final).
While the People emphasize their interest in excluding Spanish-speaking jurors because of the presence of an interpreter, there is no indication that any other members of the panel were also asked if they spoke Spanish. Charged by defense counsel with discriminating against the two, it is significant that in offering his explanation to the trial court the prosecutor made no indication of similar interest about the balance of the panel (cf., State v Antwine, 743 S.W.2d 51 [Mo], cert denied 486 U.S. 1017 [reasons given — inattentiveness during voir dire and relative in prison — were also reasons used to challenge whites]; State v Walton, 227 Neb. 559, 418 N.W.2d 589 [reason given — no ties to community — also used to challenge whites]; see also, 2 LaFave Israel, op. cit.).
Thus, given the potential for disparate impact and the meager record made by the People on the issue, I cannot agree with the majority that the People have satisfied their burden of rebutting the prima facie case of discrimination in this case.
Where, as here, a language-based reason for exercising peremptory challenges is intimately linked to ethnicity and has the same impact as one that is, in fact, ethnically based, the People's offer of a neutral explanation must be subjected to enhanced scrutiny. The objective of such scrutiny is not to equate peremptories with challenges for cause but to determine whether the proffered ground is indeed an appropriate reason to exclude such groups from the jury at all. Additional voir dire, either directed or conducted by the court, may not always be necessary, but some investigation or inquiry beyond the minimum mandated in the ordinary case is. Otherwise, absent that somewhat more demanding standard, the prosecution's removal of all persons of a certain ethnic group, whether intentionally or not, can all too readily be justified by the mere recitation of a language-based reason. In this State, with its varied and often concentrated ethnic populations, the inevitable effect on the composition of our juries of permitting such language-based justifications without close inspection would be intolerable.
In any event, certainly something more is required than the prosecutor's reference to a subjective impression (based on lack of eye contact) of the sincerity of the jurors' assurances that they would accept the interpreter's version of what the witnesses said. All that we know for certain in this case is that defendant is a Latino, and every Latino has been excluded from a panel of 63 individuals. That being so, the inference remains unrebutted that the trial prosecutor struck the last two Latino jurors on the basis of an intuitive judgment deriving from their heritage. The Supreme Court in Batson concluded that the prosecutor "may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race." ( 476 US, at 97.) On this record, we really have no more than that.
Finally, I must question the majority's facile assumption that the explanation offered by the prosecutor was a valid trial-related concern at all. If the interpreters employed by our criminal courts are as accurate as they should be, given that the defendant's liberty may depend upon the translator's words, then there should be no disagreement between the translator and jurors fluent in Spanish. Surely, the majority does not intend to suggest, on the other hand, that if the translator is rendering a witness' testimony inaccurately into English, the State has a valid interest in permitting the errors to go unnoticed. And if the prosecutor's concern is merely that the jurors may become involved in disputes about nuance and word choice, that could be adequately addressed by an instruction that Spanish-speaking jurors are to adhere to the official translation only, and bring any errors they may discern to the attention of the court, but under no circumstances to the attention of their fellow jurors. What is not a permissible method of addressing the situation is the wholesale exclusion from the jury of anyone sharing defendant's racial or ethnic background.
On this record, the removal of the last two Latino jurors for what in the end is simply their proficiency in the Spanish language, should not be sanctioned. I would reverse the Appellate Division order and order a new trial.