Opinion
April 8, 1996
Appeal from the Supreme Court, Kings County (Marrus, 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.
A defendant may not exercise peremptory challenges in such a manner as to purposefully exclude jurors who do not share the defendant's race. Once a prima facie case is made that a defendant is exercising peremptory challenges in such a manner, the defendant must give nondiscriminatory explanations for such challenges ( see, Batson v. Kentucky, 476 U.S. 79; People v Stiff, 206 A.D.2d 235, lv denied 85 N.Y.2d 867, cert denied ___ US ___, 116 S Ct 107). Any explanation need not rise to the level needed to sustain a challenge for cause ( see, People v. Allen, 86 N.Y.2d 101, 109; People v. Stiff, supra). The reason may even be "ill-founded — so long as the reason does not violate equal protection" ( People v. Allen, supra, at 109). The proponent of the Batson challenge then has the burden of proving that the proffered reasons were pretexual ( see, People v. Richie, 217 A.D.2d 84).
In this case involving the maltreatment of children with behavioral or learning disabilities by an elementary school principal, the defendant challenged, inter alia, a prospective juror because that individual had a relative who worked in the same elementary school as one of the defendant's relatives. This explanation has a bearing on the case at bar, and relates to a legitimate concern ( see, People v. Bailey, 200 A.D.2d 677, 678). Moreover, the explanation was race-neutral and no equal protection violation can be discerned from defense counsel's challenge upon this basis. Accordingly, it was error for the trial court to have found that this race-neutral explanation was pretextual ( see, People v. Simmons, 79 N.Y.2d 1013).
The defendant's remaining contentions are without merit or need not be addressed. Miller, J.P., Hart and Florio, JJ., concur.
In the matter at bar, the prosecutor charged that the attorney for the defendant, who was white, was engaging in a systematic pattern of peremptorily challenging non-white jurors on the basis of race ( see, e.g., People v. Stiff, 206 A.D.2d 235, lv denied 85 N.Y.2d 867, cert denied ___ US ___, 116 S Ct 107). The court demanded that defense counsel give race-neutral reasons for his challenges. In subsequent colloquy, the court accepted some of the reasons proffered by defense counsel, but overrode two others. Of these, the majority has deemed one judicial "override" to have constituted reversible error. I disagree.
The prospective juror at issue, number 12, related that her brother-in-law worked as a child psychologist in the same school in which the wife of the defendant's brother was employed as a teacher. In my estimation, the trial court did not err in deeming these relationships to be too remote to be anything but pretextual. In so doing, the court noted that defense counsel had made no effort to "voir dire" the juror on the subject, "even out of the presence of the other jurors".
The court's conclusion that the defendant's purported reason for challenging juror number 12 was disingenuous is borne out by defense counsel's misleading suggestions at various points during the third step of the Batson colloquy that the degree of consanguinity on both sides was closer, and therefore more prejudicial, than in fact was the case. Thus, at one point defense counsel told the court: "Judge, this particular juror worked in the school with my client's brother". Then, correcting himself, he said: "Actually, her mother did, with [the defendant's] relative". When the court pressed about the juror's "relative", counsel at length conceded that it was the juror's "brother-in-law". Similarly, defense counsel declared that not only the defendant's sister-in-law, but the defendant's mother-in-law as well worked at the school of the juror's relative; when asked by the court if that was the school at which the defendant's brother (who was also under indictment in an unrelated matter) served as the principal, counsel answered, "Yes". However, it was later clarified on the record, without contradiction by the defendant's counsel, that the defendant's brother did not work at the school of the juror's relative.
On the record before us, there is no indication of how juror number 12 might have been biased by the fact that her brother-in-law worked in the school of the defendant's sister-in-law, nor did defense counsel explore this issue with the juror. It is well settled that at the third step of a proper Batson inquiry, a Judge is entitled to assess the persuasiveness of a facially race-neutral explanation, and decide as a question of fact whether the opponent of the challenge has carried his burden of proving purposeful discrimination ( Batson v. Kentucky, 476 U.S. 79, 98; Hernandez v. New York, 500 U.S. 352, 359, affg 75 N.Y.2d 350). "At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination" ( People v. Richie, 217 A.D.2d 84, 87). Such determinations by the trial court are entitled to great deference on appeal — particularly where, as here, they are supported by the record ( see, e.g., People v. Jones, 213 A.D.2d 677, lv granted 86 N.Y.2d 737; People v. Payne, 213 A.D.2d 565, lv granted 86 N.Y.2d 739; People v. Thomas, 210 A.D.2d 515; People v. Guess, 208 A.D.2d 559; People v. Bailey, 200 A.D.2d 677; People v. Mondello, 191 A.D.2d 462, 463). As this Court has observed in the past: "The [trial] court was in the best position to observe counsel's demeanor and determine whether his explanations were credible or, as the court apparently found, transparent excuses" ( People v. Jupiter, 210 A.D.2d 431, 434).
Under the circumstances of this case, I see no reason to disturb the trial court's finding that the explanation given for the challenge to juror number 12 was merely pretextual. Accordingly, I would affirm the judgment of conviction.