The People, Respondent,v.Everett B. McMillan, Appellant.BriefN.Y.March 29, 2017To be argued by A. ALEXANDER DONN ( 15 minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against EVERETT B. MCMILLAN, Defendant- Appellant. BRIEF FOR DEFENDANT-APPELLANT March 30, 2016 LYNN W. L. FAHEY A. ALEXANDER DONN Attorneys for Defendant-Appellant 111 John Street, 9th Floor New York, N.Y. 10038 T: (212) 693-0085 F: (212) 693-0878 APL-2015-00304 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT .................................................................... 1 QUESTIONS PRESENTED ........................................................................... 2 SUMMARY OF ARGUMENT ...................................................................... 3 STATEMENT OF FACTS Introduction ........................................................................................... 6 The Suppression Hearing ...................................................................... 8 The People's Case ......................................................................... 8 Appellant's Arrest Pursuant to the Parole Warrant. ................. 8 NYPD Detective Herlihy's Search of Appellant's Car .......... 11 The Defense Case ........................................................................ 11 Arguments and the Court's Ruling .............................................. 12 The People's Batson/Kern Challenge ................................................. 13 The People's Case at Trial.. ................................................................ 1 7 The Verdict ......................................................................................... 1 7 The Appeal. ......................................................................................... 1 7 ARGUMENT Point I THE WARRANTLESS SEARCH OF APPELLANT'S CAR VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES BECAUSE IT WAS CONDUCTED ENTIRELY BY A POLICE DETECTIVE WHOSE JOB WAS SIMPLY TO APPREHEND PAROLE ABSCONDERS AND WHO THUS WAS NOT THE FUNCTIONAL EQUIVALENT OF APPELLANT'S PAROLE OFFICER (U.S. CONST. AMENDS. IV, XIV; N.Y. CONST., ART. I,§ 12) ....................................................................................... 19 Point II A. The Search of Appellant's Car Was Unlawful Under Huntley Because It Was Not Conducted by His Own Parole Officer ............................................................ 20 B. An NYPD Detective in the JAWS Unit is Not the Equivalent of a Parolee's Own Parole Officer ...................................................................................... 25 C. The Search of Appellant's Car Was Unlawful Because It Was Not Reasonably Related to the Purposes of Parole .................................................................... 31 WHEN THE COURT HAD STRICTLY LIMITED EACH PARTY TO 15 MINUTES OF QUESTIONING FOR EACH ROUND OF JURY SELECTION, THE COURT ERRONEOUSLY RULED THAT DEFENSE COUNSEL'S REASON FOR STRIKING A PROSPECTIVE JUROR, THAT COUNSEL "D[ID]N'T KNOW ANYTHING ABOUT HER" EXCEPT THAT HER COUSIN WAS A POLICE OFFICER, WAS PRETEXTUAL AT STAGE THREE OF THE PROSECUTOR'S BATSONi KERN CHALLENGE (U.S. CONST. AMENDS. V, XIV; N.Y. CONST., ART. I, §§ 2, 6) ......... 34 CONCLUSION ............................................................................................. 44 11 TABLE OF AUTHORITIES CASES Batson v. Kentucky, 476 U.S. 79 (1986) ...................................................... 35 Griffin v. Wisconsin, 483 U.S. 868 (1987) ............................................... 3, 20 Hernandez v. New York, 500 U.S. 352 (1991) ............................................ 36 Holland v. Illinois, 493 U.S. 474 (1990) ...................................................... 35 Lewis v. United States, 146 U.S. 370 (1892) ............................................... 35 Morrissey v. Brewer, 408 U.S. 471(1972) ............................................... 3, 21 People v. Dunn, 77 N.Y.2d 19 (1990) .......................................................... 30 People v. Geaslen, 54 N.Y.2d 510 (1981) ............................................... 23-24 People v. Hale, 93 N.Y.2d 454 (1999) ............................................... 20, 22-26 People v. Harris, 77 N.Y.2d 434 (1991) ....................................................... 30 People v. Hecker, 15 N.Y.3d 625 (2010) ............................................... passim People v. Huntley, 43 N.Y.2d 175 (1977) ............................................. passim People v. Jackson, 46 N.Y.2d 171 (1978) .................................... 22-23, 31-32 People v. Johnson, 63 N.Y.2d 888 (1984) .................................................... 22 People v. Kem, 75 N.Y.2d 638 (1990) ................................................... 35, 36 People v. Knights, 534 U.S. 112 (2001) ....................................................... 29 People v. Nieves-Andino, 30 A.D.3d 1137 (1st Dept. 2006) ....................... 42 People v. Payne, 88 N.Y.2d 172 (1996) ............................................ 36-37, 41 111 People v. Samson, 547 U.S. 843 (2006) .................................. 3, 20, 21, 28-29 People v. Scott, 79 N.Y.2d 474 (1992) ......................................................... 30 People v. Torres, 74 N.Y.2d 224 (1989) ....................................................... 30 People v. Weaver, 12 N.Y.3d 433 (2009) ..................................................... 30 Purkett v. Elem, 514 U.S. 765 (1995) ........................................................... 37 STATUTORY AUTHORITY N.Y. Comp. Codes R. & Regs. tit. 9, § 8004.2(e) ........................................ 26 Criminal Procedure Law§ 270.25 ................................................................ 35 Criminal Procedure Law§ 450.90(1) ............................................................. 2 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. IV ........................................................................ 2, 3, 20 U.S. Const., Amend. V ......................................................................... 2, 6, 35 U.S. Const., Amend. XIV ..................................................................... 2, 6, 35 N.Y. Const., Art. I, § 12 ........................................................................ 2, 3, 20 N.Y. Const., Art. I,§ 2 .......................................................................... 2, 6, 35 N.Y. Const., Art. I,§ 6 .......................................................................... 2, 6, 35 OTHER AUTHORITY New York State Parole Handbook, QUESTIONS AND ANSWERS CONCERNING PAROLE RELEASE AND SUPERVISION, "WHAT ARE THE RESPONSIBILITIES OF A FIELD PAROLE OFFICER?" available at IV https://www.parole.ny.gov/intro handbook.html (last viewed on January 28, 2016) ............................................................................................................. 25 New York City Police Department, "Frequently Asked Questions," available at http://www.nyc.gov/html/nypd/html/faq/faq police.shtml# 1 (last viewed February 4, 2016) .......................................................................................... 28 v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- EVERETT B. MCMILLAN, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable Leslie E. Stein, Associate Judge of the Court of Appeals, granted December 2, 2015, appellant Everett B. McMillan appeals from an order of the Appellate Division, Second Department, entered on July 1, 2015, affirming a judgment rendered on December 16, 2010, by the Supreme Court, Queens County, convicting him, after a jury trial, of criminal possession of a weapon in the second and third degrees and unlawful possession of marijuana, and imposing sentence. On January 5, 2016, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on appeal. Appellant is incarcerated pursuant to the judgment. No stay has been sought. Appellant had no co-defendants. The Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal. The first issue, that appellant's car was searched illegally, was preserved for appeal by defense counsel's suppression argument and the court's written decision (A 71-74, 76, 81-83). 1 The second issue, that the court erred in granting the People's Batson/Kem application during jury selection, was preserved for appeal by counsel's race-neutral explanation for the challenged strike and the court's stage three ruling (A 313-15). QUESTIONS PRESENTED (1) Whether the warrantless search of appellant's car violated his federal and state constitutional rights to be free from unreasonable searches and seizures because it was conducted entirely by a police detective whose job was simply to apprehend parole absconders and who thus was not the functional equivalent of appellant's parole officer (U.S. Const. Amends. IV, XIV; N.Y. Const., Art. I, § 12). (2) Whether, when the court had strictly limited each party to 15 minutes of questioning for each round of jury selection, the court erroneously ruled that defense counsel's reason for striking a prospective juror, that counsel "d[id]n't know anything about her" except that her cousin was a police officer, was pretextual at stage three of the prosecutor's Batson/Kem challenge (U.S. Const., Amends. V, XIV; N.Y. Const., Art. I, §§ 2, 6). 1 Numbers in parentheses preceded by "A" refer to the pages of Appellant's Appendix. 2 SUMMARY OF ARGUMENT I Like other members of society, parolees are protected from unreasonable searches and seizures by the Fourth Amendment to the United States Constitution and Article I, § 12, of the New York Constitution. See People v. Samson, 547 U.S. 843, 848-50 (2006); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987); People v. Huntley, 43 N.Y.2d 175, 180-81 (1977). Parolees have fewer expectations of privacy than ordinary individuals, and their parolee status is relevant to the determination of whether a search is reasonable. See Samson, 547 U.S. at 850; Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972). A warrantless search of a parolee or his property that is "undertaken by the parolee's own parole officer" is constitutionally permissible only if the parole officer's "conduct is rationally and reasonably related to the performance of his duty as a parole officer." Huntley, 43 N.Y.2d at 179, 181 (emphasis added). This exception to the warrant requirement is, however, a narrow one: the legal standard for evaluating the reasonableness of the search of a parolee by a police officer is still "the familiar requirement of a showing of probable cause." Id. at 181. 3 Here, the person who conducted a warrantless search of appellant's car was an NYPD detective. As a member of the NYPD's Joint Apprehension Warrant Squad ("the JAWS unit"), his job was to apprehend parole violators. He had no parole supervision responsibility and had never even spoken with appellant's parole officer. The conditions of appellant's parole did not permit parole searches to be conducted by anyone other than his own parole officer. After arresting appellant on a parole warrant inside an apartment, the NYPD detective searched appellant's car for a gun on the basis of a second-hand tip. Since appellant's parole officer was not present for, let alone involved in, the warrantless search of his car, and the search was initiated for an investigative purpose - a "gun call" - that was unrelated to appellant's parole supervision, the search fell outside the Huntley exception. Allowing a parolee search to be conducted exclusively by an NYPD detective in the JAWS unit would violate Huntley and undermine the policy considerations on which it was based. Unlike a parolee's own parole officer, whose job includes assisting the parolee's reentry into the community, a member of the JAWS unit has no responsibility to the parolee at all. Furthermore, permitting NYPD detectives in the JAWS unit to conduct parolee searches would lead to a rule allowing any of the NYPD's 34,500 4 officers to conduct such search if the officer had collaborated with the Division of Parole, however minimally, during an investigation. Finally, to uphold the search of appellant's car would allow the Division of Parole and the NYPD to unilaterally and retroactively change the terms of his parole to justify a search that had already taken place. II In People v. Hecker, 15 N.Y.3d 625, 658 (2010), this Court held that when the trial court imposes a strict time limit for each party's questioning during jury selection, a party can use a peremptory challenge to strike a prospective juror because the party "kn[ ows] little to nothing about" the prospective juror. In such situations, counsel's "strategy ... [is] not to avoid or ignore a particular class of prospective jurors based on race," but instead to "remove jurors whom either she or both parties did not have time to address." Id. Here, adhering to the court's strict 15-minute time limit for each party to question the prospective jurors, defense counsel questioned only nine of 13 available panelists in the first round. After the prosecutor made a Batson/Kern application based on defense counsel's use of peremptory strikes against four Asian prospective jurors, the court ruled that counsel's 5 reason for one of the strikes, that he "d[id]n't know anything about" the panelist other than that she was related to a police officer, was pretextual. Therefore, under Hecker, the court erred in ruling that the challenge was pretextual, and appellant was deprived of his right to a jury in whose selection he had a voice. U.S. Const., Amends. V, XIV; N.Y. Const., Art. I, §§ 2, 6. STATEMENT OF FACTS Introduction One of the conditions of appellant's Certificate of Release to Parole Supervision stated, "I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property." No parole condition permitted such a search by anyone other than appellant's own parole officer. After appellant violated the terms of his parole, his parole officer issued a parole warrant for his arrest and "wash[ ed] [his] hands" of the case. The individual tasked with executing the parole warrant was a detective in the NYPD's JAWS unit. Members of this unit, who worked with "parole warrant officers" in the Division of Parole to apprehend parole absconders, had no responsibilities related to the supervision of parolees. 6 A few weeks after the parole warrant was issued, appellant's girlfriend or ex-girlfriend called the NYPD detective responsible for apprehending appellant. She told the detective that her son had sent her a text message saying that appellant had a gun in his car and provided an address where appellant could be found. Unaccompanied by any parole officer, the NYPD detective and his partner went to the address and arrested appellant in an apartment pursuant to the parole warrant. After putting appellant in a police van, one of the NYPD detectives searched appellant's car without a warrant and found a loaded gun. Defense counsel argued that the gun should be suppressed because a parolee "does not waive all of his Fourth Amendment constitutional rights," the search provision in appellant's parole conditions "specifically refers to his parole officer, not the police officers," and the NYPD detective "did not have a Fourth Amendment exception to get into the car." The hearing court ruled that the search was a lawful parole search and denied suppression. The case went to trial and, when jury selection began, the court informed the parties that they each would have 15 minutes to question each panel of prospective jurors. In the first round, counsel questioned only nine of the 13 available prospective jurors before running out of time. Much of his allotted time was spent questioning a single prospective juror, and 7 additional time was consumed by a lengthy colloquy between the court and that prospective juror, who was later removed for cause on consent. After defense counsel issued peremptory strikes in that round, the People made a Batson/Kem challenge regarding four Asian prospective jurors who had been struck. The court accepted counsel's explanations for three of the prospective jurors. Defense counsel explained that he had struck the fourth panelist because he "d[id]n't know anything about her," except that her cousin was a police officer. The court ruled that this explanation was pretextual and seated the juror. Appellant was convicted of criminal possession of a weapon in the second and third degrees and unlawful possession of marijuana. The Suppression Hearing The People's Case Appellant's Arrest Pursuant to the Parole Warrant On July 3, 2009, Detective Kevin Herlihy, a detective in the NYPD's Joint Apprehension Warrant Squad ("the JAWS unit"), had a parole warrant for appellant's arrest, which had been issued about two weeks earlier (A 10- 12, 18). Asked to enumerate his "duties in connection with the warrant squad," Detective Herlihy responded, "Investigate and apprehend parole 8 absconders" (A 11 ). He did not list any other duties or claim to have any responsibility for supervising parolees (A 11 ). When a parolee's own parole officer "issue[d] [a] warrant" for the parolee's arrest on a parole violation, that parole officer "wash[ ed] their hands" of the case, and it was transferred to a "parole warrant officer" in the Division of Parole, who would then serve as a "liason" with the NYPD's JAWS unit (A 18-19, 41-42). Then a police officer in the JAWS unit would "go out" with the warrant officer (A 18). As a condition of his release, appellant had signed a Certificate of Release to Parole Supervision, which stated, "I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property" (A 80). No parole condition permitted such a search by anyone other than appellant's own parole officer (A 80). When appellant's parole officer issued the warrant for his arrest, the case was transferred to Parole Warrant Officer Charles Russell, who "receive[ d] all parole [absconder] cases" in Queens (A 40-42). Detective Herlihy had previously spoken to Parole Warrant Officer Russell (A 19, 40, 42), but had never spoken with appellant's own parole officer (A 41). 9 On July 3, after receiving a phone call from appellant's girlfriend or ex-girlfriend, Detective Herlihy and his partner, Detective George Tsangaris, went to a specific residence in Queens because "appellant was supposedly [there] in his vehicle" (A 12-14). No parole officer or parole warrant officer accompanied them (A 13-14). They did not find appellant at the location (A 14). Shortly after they left, the woman called Detective Tsangaris again to say that appellant had returned to the location (A 14 ). "[F]rantic," she claimed that appellant was "in the car with her son, and [her son] was texting her that there was a gun in the car" (A 14-15). Detectives Herlihy and Tsangaris returned to the address they had previously visited, but no parole officer or warrant officer accompanied them or met them at the location (H. A 16, 18-19). An unoccupied Buick registered to appellant was parked outside the house (A 16). After backup police officers arrived, Detectives Herlihy and Tsangaris arrested appellant in an apartment pursuant to the parole warrant, "push[ing] him down on the floor" (A 17-18, 33). A car key was on the floor when they picked him up (A 19). The detectives picked up the key and put appellant in a police car (A 19-20). 10 NYPD Detective Herlihy's Search of Appellant's Car As the detectives were leaving, the landlord asked Detective Herlihy to move appellant's car because it was blocking the driveway (A 19-20, 34- 35). Instead of moving the car, Detective Herlihy immediately "looked underneath the rear of the driver's seat" (A 20, 37). He searched the car "because of the call ... we apprehended the defendant, he didn't have a gun, but yet there was a gun call ... [to] be sure there was no gun in the car" (A 38). He then saw an open back pack on the back seat and found a gun inside it (A 20, 37-38). At the precinct, Detective Herlihy recovered two plastic bags of marijuana from appellant's hair (A 22). The Defense Case At around 9:00 a.m. on July 3, 2009, appellant drove Timothy Settles, his girlfriend's son, who had previously been convicted of assault, to a residence in Queens (A 47-49, 67). Settles did not send his mother any text messages (A 54). Appellant and Settles were in the upstairs apartment when, around 1 :00 p.m., the police banged on the door downstairs (A 48- 49). Settles went outside and tried to close the door behind him, but an officer put his foot in the door to keep it open (A 54-55). Appellant's car was not blocking the driveway, and neither the landlord nor anyone else said it needed to be moved (A 57-58, 70). 11 Police officers took appellant downstairs and put him in a police van (A 56-57). After "go[ing] through [appellant's] pockets," the officers talked briefly and asked Settles if he knew where the car key was (A 57). Settles said he did not, and the officers went up to the apartment again and returned with a set of keys (H. 52). After two officers drove away with appellant, other officers opened appellant's car with the keys, searched it, and "came out ... with something" (A 59-60). Arguments and the Court's Ruling Defense counsel argued that a parolee "does not waive all of his Fourth Amendment constitutional rights" and that "a search of a parolee's private property, residence or car still has to ... [be] reasonabl[e]" (A 72- 73). Noting that the situation would be "different" if "it was the parole officer" who had searched appellant's car, especially because the Certificate of Release to Parole Supervision signed by appellant "specifically refers to his parole officer, not the police officers," counsel contended that Detective Herlihy "did not have a Fourth Amendment exception to get into the car" (A 73-74). 12 The People responded that Detective Herlihy "was acting alongside parole" and was "in contact with ... parole" regarding a "warrant specific to [appellant]," so appellant "waive[d] all his rights" (A 74). The court denied suppression (A 76, 83). Its written decision did not address the fact that appellant's parole officer had not participated in the challenged search (A 81-83). It noted, however, that one of the statutory conditions of parole in New York is that the parolee "will permit the search and inspection of his person ... by his parole officer" (A 82). Citing People v. Huntley, 43 N.Y.2d 175 (1977), the court ruled that the search was justified because not only did the Detective have information from the parole officer that the defendant, who was on parole, had an active parole warrant, he was further informed that that parolee may have a gun in the car (A 82-83).2 The People's Batson/Kern Challenge During jury selection, the court conducted its questioning of the prospective Jurors by "get[ting] [their] answer[s]" to a questionnaire (A 131 ). In the first round, there were 14 prospective jurors on the panel (A 126-27). Jo.Y. responded that she was born in Hong Kong, had been 2 The court's decision did not address any legal justification for the search other than its lawfulness under Huntley (A 82-83). 13 living in the United States for 12 years and at the same address in Flushing for 10 years, and that she was single and unemployed with a bachelor's degree in science (A 168-70). Neither she nor a close friend or relative had served on a grand jury or trial jury, witnessed a crime, been a victim of, accused of, or convicted of a crime, worked at a law firm or had any legal training, or had an experience with the police that made her feel that she could not be fair (A 168-70). Jo.Y. said that she could follow the law and that her cousin was a police officer (A 169-70). Three other prospective jurors in the first round also had a law enforcement connection. F.G., a retired postal worker, had "a couple" of friends who were police officers (A 126, 156-61). I.G., a rabbi, "kn[e]w ... policemen" (A 248-51 ). M.R., a civil forfeiture attorney for the NYPD, was removed for cause on consent of the parties before either attorney questioned the prospective jurors (A 225-30). Before the parties began questioning in the first round, the court imposed a 15-minute limit for each party's questions, adding that the attorneys could "use less if [they] want[ ed]" (A 280 ). Defense counsel asked F.G. six questions about his "friends that are police officers" (A 295- 96). F.G. acknowledged that "a police officer ... can swear to tell the truth but he can lie" (A 296). Counsel continued this line of inquiry with the rest 14 of the panel, asking five more questions about whether the prospective jurors felt that police officers were "entitled to more credibility than anybody else" (A 296-97). After counsel had asked about 25 more questions, the court announced that he had five minutes left (A 304). Counsel posed another question to F.G., who said he would "determin[ e] credibility . . . from a witness" by "hear[ing] the other side," and added, "[Y]ou [defense counsel] are here to defend your client so you have to prove to me that he wasn't there" (A 304-05). This led to a lengthy court instruction, nearly three transcript pages long, regarding the defendant's right not to testify (A 306-08). Counsel asked about seven more questions, at least three of them to F.G., before the court announced that his 15 minutes had expired (A 309-10). Counsel had about 50 questions to nine individual prospective jurors and had directed 15 of the questions to F.G. (A 295-310).3 Before the parties used their peremptory challenges, F.G. was removed for cause on consent (A 311 ). Counsel struck Jo.Y., LG., Ji.Y., K.C., C.C., and Z.M. (A 126-27, 230, 312-13). Of these six, counsel had questioned only K.C. (A 295-310). Citing the strikes against Jo.Y., Ji.Y., 3 The prospective jurors to whom counsel directed at least one question were: F.G., D.D., D.T., A.D., C.P., S.R., D.I., K.C., and B.M. (A 295-310). 15 K.C., and C.C., the prosecutor raised a Batson/Kem challenge, arguing that counsel had struck "a hundred percent" of "the Asians on the panel" (A 312- 13 ). After the court asked counsel to provide race-neutral reasons for the strikes, counsel explained that he struck Ji.Y. because he had prior jury service, K.C. because she was too young, and C.C. because of his background in theology (A 313-14). Regarding Jo.Y., the following exchange took place: [DEFENSE COUNSEL]: . . . [T]here was no information that was brought out about her other than the fact she has a police officer that's a cousin. There is nothing specific. THE COURT: Other than the fact that she is Asian? [DEFENSE COUNSEL]: There is nothing specific. I don't know anything about her .... (A 313). The prosecutor claimed that all of the explanations were pretextual and argued that defense counsel "had every right to question ... [Jo.Y.] and didn't" and that "just having a police cousin ... [is] not [a] race neutral reason[]" (A 314). Without explanation, the court found counsel's reason for challenging Jo.Y. "to be pretextual" and seated her on the jury (A 314). The court denied the People's Batson/Kem application as to Ji.Y., K.C., and C.C. (A 314-16). 16 The People's Case at Trial Detective Kevin Herlihy repeated his testimony regarding the events leading up to the recovery of the gun (A 84-112), which was loaded and operable (A 113-23 (Detective Warren Duryea)). The Verdict The jury convicted appellant of criminal possession of a weapon in the second and third degrees and unlawful possession of marijuana (A 124- 25). The Appeal On appeal to the Appellate Division, Second Department, appellant argued that his constitutional right to be free from unreasonable searches and seizures was violated when a police detective, unaccompanied by a parole officer, conducted a warrantless search of his car after arresting him inside an apartment on a parole warrant (A 3-4). Appellant also argued that the court erred in ruling that defense counsel's reason for striking a prospective juror was pretextual at stage three of the prosecutor's Batson/Kem challenge (A4). The Appellate Division affirmed the conviction. Regarding the suppression ruling, the court stated: 17 Under the circumstances of this case, the detective's search of the car was "rationally and reasonably related to the performance of the parole officer's duty" by dint of the detective's parole responsibilities as a member of the Joint Apprehension Warrant Squad (People v. Huntley, 43 N.Y.2d at 181, 401 N.Y.S.2d 31, 371 N.E.2d 794; see People v. Van Buren, 198 A.D.2d 533, 534, 604 N.Y.S.2d 188). Here, no relevant distinction exists between the detective and the defendant's parole officer (see People v. Van Buren, 198 A.D.2d at 534, 604 N.Y.S.2d 188). At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant's arrest (see People v. Huntley, 43 N.Y.2d at 182, 401 N.Y.S.2d 31, 371 N.E.2d 794), and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun (A 4 ). The Appellate Division also held that the trial court had properly granted the prosecutor's Batson/Kem challenge because counsel's explanation that "'there was no information that was brought out about [the juror] other than the fact she has a police officer that's a cousin' ... essentially amounted to no reason at all" and, in any event, the record "provided a sufficient basis to conclude that th[ e] explanation was pretextual" (A 4). 18 On December 2, 2015, the Honorable Leslie E. Stein granted appellant leave to appeal (A 1 ). ARGUMENT POINT I THE W ARRANTLESS SEARCH OF APPELLANT'S CAR VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES BECAUSE IT WAS CONDUCTED ENTIRELY BY A POLICE DETECTIVE WHOSE JOB WAS SIMPLY TO APPREHEND PAROLE ABSCONDERS AND WHO THUS WAS NOT THE FUNCTIONAL EQUIVALENT OF APPELLANT'S PAROLE OFFICER (U.S. CONST. AMENDS. IV, XIV; N.Y. CONST., ART. I,§ 12). The NYPD detective who conducted a warrantless search of appellant's car did so because "there was a gun call" (A 38). The detective was not accompanied by a parole officer, had never spoken with appellant's own parole officer, and had no responsibility for appellant's parole superv1s10n. Under these circumstances, the search clearly fell outside the narrow "parolee search" exception announced by this Court in People v. Huntley, 43 N.Y.2d 175 (1977). Since NYPD detectives in the JAWS unit coordinate with the Division of Parole only for the limited purpose of apprehending parole absconders to 19 whom they owe no duty, permitting them to conduct warrantless parolee searches would contradict the policy considerations on which Huntley was explicitly premised. Huntley, N.Y.2d at 181; see also People v. Hale, 93 N.Y.2d 454, 460-62 (1999). Furthermore, their searches would not be "rationally and reasonably related to the performance of [the] duty [of] a parole officer." Huntley, 43 N.Y.2d at 179, 181. In any event, since the conditions of appellant's parole did not permit searches by anyone other than his own parole officer, upholding the search in his case would allow the Division of Parole and the NYPD to unilaterally and retroactively change the terms of his parole in order to justify a warrantless search that had already taken place. A. The Search of Appellant's Car Was Unlawful Under Huntley Because It Was Not Conducted by His Own Parole Officer. Like other members of society, parolees enjoy the critical protections guaranteed by the Fourth Amendment to the United States Constitution and Article I,§ 12, of the New York Constitution. See Samson, 547 U.S. at 848- 50, Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). This Court has explicitly held that a parolee "d[ oes] not surrender his constitutional rights against unreasonable searches and seizures" as a "consequence of his acquiring status as a parolee." Huntley, 43 N.Y.2d at 180-81. Parolees have 20 fewer expectations of privacy than ordinary individuals, however, and their parolee status is relevant to the determination of whether a search is reasonable. See Samson, 547 U.S. at 850; Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972). Thus, this Court has established a narrow exception to the warrant requirement for parolee searches "undertaken by the parolee's own parole officer." 43 N.Y.2d at 181 (emphasis added). In Huntley, after a parole warrant had been issued for the defendant's arrest as a result of routine parole violations, his parole officer and five other parole officers arrested him in his apartment, searched it, and found drugs and related paraphernalia. Id. at 179-81. In upholding the search, this Court emphasized that it had been conducted by the defendant's own parole officer, whose duties were fundamentally different from those of other law enforcement officials. Id. at 181.4 As the Court explained, there are two "sometimes potentially inconsistent aspects" of a parole officer's responsibilities: in addition to his obligation to "prevent parole violations for the protection of the public," he also "has a responsibility to the parolee to prevent violations of parole and to 4 Notably, the Court considered the unique relationship between a parolee and his own parole officer to be so important to the constitutional analysis that it felt compelled to explain that the search was not rendered unlawful by the participation of additional parole officers, who assisted the defendant's own parole officer. Id. at 182. 21 assist him to a proper reintegration into his community." Id. (emphasis added). Accordingly, the Huntley Court announced the following rule: a parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer. Id. at 179 (emphasis added). Leaving no doubt regarding the limited scope of the rule, the Court explicitly asserted that "the standard by which the reasonableness of a search or seizure with respect to a parolee by a police officer is to be measured" was "the familiar requirement of a showing of probable cause." Id. at 181 (emphasis added). Huntley clearly stands for the proposition that only one person can conduct a warrantless parolee search: the parolee's own parole officer. See id. at 179-82. Indeed, in the nearly 40 years that have passed since Huntley was decided, this Court has never upheld a warrantless search of a parolee or probationer that was not conducted, at least in part, by the defendant's own parole or probation officer. See People v. Hale, 93 N.Y.2d 454 (1999) (discussed post); People v. Johnson, 63 N.Y.2d 888, 890 (1984) (upholding search conducted by defendant's own parole officer); People v. Jackson, 46 22 N.Y.2d 171 (1978) (holding probation search unconstitutional even though it was conducted by defendant's own probation officer). To the contrary, in each case, the Court has reaffirmed the importance of the unique relationship between the parolee or probationer and his own parole or probation officer. In Hale, a defendant's home was searched by his probation officer pursuant to a probation condition that "permit[ted]" the "search of [his] vehicle and place of abode ... by a Probation Officer or a Probation Officer and his agent." Id. at 457-58. This Court held that the search was constitutional because it had been "initiated and undert[ aken ]" by the defendant's probation officer, who, "by virtue of his own responsibility for and relationship with the defendant," had been "motivated by his duty to monitor the terms of defendant's probation and rehabilitation." Id. at 462 (emphasis added). In upholding the search, the Court also emphasized that the search provision in the terms of the defendant's probation was "circumscribed to specified types of searches by probation officers acting within the scope of their supervisory duty and in the context of the probationary goal of rehabilitation." Id. at 860 (emphasis added). In People v. Geaslen, 54 N.Y.2d 510, 514 (1981), a parole officer and other parole officers found a knife in the parolee-defendant's hotel room after entering it "under the authority of a standard search consent form 23 signed by the defendant as a condition of parole." The suppression court ruled that the search was lawful, but it was subsequently revealed that the prosecution had failed to disclose a police officer's grand jury testimony that it was he, "not the parole officers," who had "entered and searched" the defendant's hotel room and found the knife there. Id. Explaining that "quite different legal principles would have been controlling" had the suppression court "determined that the search and seizure had been conducted by a police officer," this Court held that the defendant had been denied his constitutional right to due process by the prosecution's failure to disclose the grand jury testimony. Id. at 514 (emphasis added). Here, it is undisputed that no parole officer, not even a parole warrant officer, was present for the search of appellant's car. Instead, the search was conducted entirely by an NYPD police detective who had no duties related to appellant's parole supervision and had never even spoken with appellant's parole officer (A 11, 41). The detective's only connection with appellant was his assignment to "[i]nvestigate and apprehend" him (A 11 ). Accordingly, the detective had no "responsibility to [appellant]," cf. Huntley, 43 N.Y.2d at 181, and was not furthering "the probationary goal of rehabilitation," cf. Hale, 93 N.Y.2d at 460, 462. Therefore, this Court's precedent compels the conclusion that the warrantless search of appellant's 24 car was unlawful. See Huntley, 43 N.Y.2d at 178-81; Hale, 93 N.Y.2d at 460-62. B. An NYPD Detective in the JAWS Unit is Not the Equivalent of a Parolee's Own Parole Officer. Unlike a parolee's own parole officer, an NYPD detective in the JAWS unit has no responsibilities related to parole supervision and no duty to the parolee. A parole officer's job is not only to "protect public safety," but also to "assist [the parolee's] reentry into the community," "counsel" him, "refer [him] to appropriate services," and "assist [him] in developing positive ways of solving [his] problems to promote the likelihood of [his] success." New York State Parole Handbook, QUESTIONS AND ANSWERS CONCERNING PAROLE RELEASE AND SUPERVISION, "WHAT ARE THE RESPONSIBILITIES OF A FIELD PARO LE 0 FFI CER ?" available at https ://www. parole.ny. gov /intro_ handbook.html (last viewed on January 28, 2016); see Huntley, 43 N.Y.2d at 181-82 (emphasizing parole officer's "responsibility to the parolee to prevent violations of parole and to assist him to a proper reintegration into his community"). As a member of the NYPD's JAWS unit, m contrast, Detective Herlihy's job was simply to "[i]nvestigate and apprehend" parolees who had 25 absconded, and his interaction with the Division of Parole was strictly limited to achieving this singular crime-fighting goal (A 11, 18-19, 41-42). Accordingly, unlike appellant's own parole officer, Detective Herlihy's warrantless search of appellant's car was not motivated, even in part, by a duty to encourage appellant's rehabilitation. Cf. Huntley, 43 N.Y.2d at 178- 81; Hale, 93 N.Y.2d at 460-62. Nor was Detective Herlihy's search permissible because of the working relationship between the NYPD's JAWS unit and the Division of Parole. The JAWS unit did not become involved in a case until after a parolee's own parole officer issued an arrest warrant, transferred the case to a "parole warrant officer," and "wash[ ed] their hands" of it (A 18-19, 41- 42). As a result, the JAWS unit worked alongside the parole warrant officer, not the parolee's own parole officer (A 41-42). In fact, Detective Herlihy had never spoken with appellant's own parole officer before searching appellant's car without a warrant. Instead, he had communicated only with the parole warrant officer, who, like Detective Herlihy, had no special duty to appellant. See 9 NYCRR 8004.2( e) (parole warrant "may be executed by any parole officer, any officer authorized to serve criminal process or any peace officer"; emphasis added). 26 Accordingly, there was nothing about Detective Herlihy's responsibilities or his minimal interaction with the Division of Parole that made him the functional equivalent of appellant's own parole officer; he was simply a police detective whose sole duty was the NYPD's mission to fight crime. Therefore, the Second Department erred in holding that there was "no relevant distinction" between Detective Herlihy and appellant's own parole officer (A 4), and allowing parolee searches to be conducted exclusively by NYPD detectives in the JAWS unit, unaccompanied by a parole officer, would plainly violate Huntley's holding that the legal standard for evaluating the search of parolee by a police officer is "the familiar requirement of a showing of probable cause." Huntley, 43 N.Y.2d at 181 (emphasis added). Moreover, allowing NYPD detectives in the JAWS unit to conduct parolee searches would expand the scope of the parolee search exception to an unknown degree and lead to an unworkable rule. The Huntley Court authorized only one person to conduct a warrantless search of a parolee: his own parole officer. Here, the hearing record does not reveal how many police officers are members of the JAWS unit, so there is no way to gauge the practical effect of such a change. Furthermore, expanding Huntley in this way would create a rule permitting any of the NYPD's 34,500 officers 27 to conduct such a parolee search if the officer happened to have had contact with the Division of Parole, however minimally, at any point during an investigation. New York City Police Department, "Frequently Asked Questions," available at http://www.nyc.gov/html/nypd/html/faq/ faq_police.shtml#l (last viewed February 4, 2016). After all, if the defining characteristic of a Huntley search - the special relationship between the parolee and his own parole officer - were deemed unnecessary to the lawfulness of the search, the exception would be stripped of its purpose, and there would be no longer be any logical limit on its use. In any event, even if the Court were to expand Huntley to allow NYPD detectives in the JAWS unit to conduct parolee searches, the search in appellant's case was still unreasonable because the "Certificate of Release to Parole Supervision" that he signed did not permit such a search. In People v. Samson, 547 U.S. 843 (2006), the Supreme Court upheld the constitutionality of a suspicionless parole search conducted by a police officer. Critically, however, it did so because the search was authorized by a California parole condition that was "clearly expressed" to the defendant and explicitly provided that he would be "subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Id. at 846, 849, 852 (emphasis 28 added). Accordingly, the Supreme Court held that the parole condition had "so diminish[ ed] or eliminate[ d] [the defendant's] reasonable expectation of privacy" that the search "did not offend the Fourth Amendment." Id. at 848; see also People v. Knights, 534 U.S. 112, 119-20 (2001) (in upholding constitutionality of search of probationer, explaining that "[t]he probation condition ... significantly diminished [defendant's] reasonable expectation of privacy" because "[t]he probation order clearly expressed the search condition and [defendant] was unambiguously informed of it"). In appellant's case, however, the challenged warrantless search was not authorized by the search condition at issue. Unlike the California condition, which provided for searches by "a parole officer or other peace officer," Samson, 547 U.S. at 846, the parole condition that appellant signed permitted only searches by "my Parole Officer" (A 80; emphasis added). Therefore, appellant had no reason to believe that, by agreeing to the conditions of his release, he was subjecting himself to warrantless searches conducted by NYPD detectives who had no duty to him or responsibility for his parole supervision. Accordingly, the explicit terms of appellant's parole did not diminish his expectation of privacy sufficiently to justify the search that took place, and the Division of Parole and the NYPD cannot unilaterally change those 29 terms after the fact by allowing an NYPD detective in the JAWS unit to stand in for appellant's own parole officer for the purposes of the search provision. See Hale, 93 N.Y.2d at 459 ("It all comes down to what is 'reasonable' under the circumstances, bearing in mind that the reasonableness of a search is measured by, among other things, the relative privacy expectation and entitlement of the person to be searched."). Therefore, regardless of whether this Court would uphold the constitutionality of a parole condition permitting parole searches exclusively by police officers, the search conducted in appellant's case was a clear-cut violation of his constitutional rights. Finally, New York has often interpreted its "own Constitution to provide greater protections" than are embodied in federal law, and has therefore "developed an independent body of state law in the area of search and seizure." People v. Weaver, 12 N.Y.3d 433, 445 (2009); see also People v. Scott, 79 N.Y.2d 474 (1992); People v. Harris, 77 N.Y.2d 434 (1991); People v. Dunn, 77 N.Y.2d 19 (1990); People v. Torres, 74 N.Y.2d 224, 228 ( 1989). The Court has been especially diligent in doing so when, as here, "the alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy." Weaver, 12 N.Y.3d at 445. 30 C. The Search of Appellant's Car Was Unlawful Because It Was Not Reasonably Related to the Purposes of Parole. Finally, the warrantless search was also improper because it was related to the performance of an investigative, rather than a parole-related, duty. See Huntley, 43 N.Y.2d at 179-81. In Huntley, this Court held that "the parole officer's conduct in searching [the defendant's] apartment for a possible explanation of his otherwise unexplained failure to report was permissible," finding it "significant" that "there was no evidence that the searching parole officers were seeking contraband or evidence in aid of prosecution for criminal activity." Id. at 181-82 (emphasis added). Here, on the other hand, Detective Herlihy specifically searched appellant's car for the "gun" mentioned in the "gun call" (A 38). Therefore, by the detective's own admission, he was "seeking contraband," and the search was clearly conducted for an investigative purpose. Cf. Huntley, 43 N.Y.2d at 181-82. Appellant's case closely resembles People v. Jackson, 46 N.Y.2d 171 (1978). In Jackson, an anonymous informant told the police that the defendant, a probationer, "possessed a weapon and was dealing drugs" at the Xerox plant where he worked. Id. at 1 73. The informant provided the make and license plate number of the defendant's car. Id. The next day, the defendant's probation officer, another probation officer, and a police 31 sergeant visited the plant and told the defendant that there was "reason to believe that he was in violation of his probation." Id. After searching appellant, the probation officers found his keys during a search of his locker and then searched his car, finding a gun. Id. at 173-74. This Court suppressed the gun. Id. at 176. Noting that the probation officer had a "duty to investigate th[ e] complaint," the Court held that "it does not follow . . . that it was reasonable for [him] to begin the investigation by conducting a wholesale search of the defendant, his locker, and his automobile." Id. at 175-76. The Court characterized the investigation as "extreme," adding that "[t]here was no apparent need for haste." Id. at 176. Similarly, the search of appellant's car was triggered by a tip that he had a gun, and an officer searched the defendant's car after obtaining his car keys without his consent. As in Jackson, there was "no apparent need for haste" because appellant was handcuffed in a police van during the search. Id. Furthermore, that the search in appellant's case was conducted by an NYPD detective with no responsibility for his parole supervision is an additional factor that weighs heavily in favor of a finding that the purpose of the search was investigative, rather than parole-related. Therefore, the search of appellant's car was not a lawful parolee search. Id. at 175-76. 32 Accordingly, the gun should be suppressed and the counts charging appellant with criminal possession of a weapon in the second and third degrees should be dismissed. * * * This issue was preserved by counsel's motion to suppress the gun because parolees do "not waive all of [their] Fourth Amendment constitutional rights and ... a search of [their] private property, residence or car still has to ... [be] reasonabl[ e ]" (A 72-73). Counsel specifically argued that that the officers "did not have a Fourth Amendment exception to get into the car" and emphasized that the Certificate of Release to Parole Supervision "specifically refers to his parole officer, not the police officers" (A 73-74). Furthermore, the court explicitly ruled that the search was permissible under Huntley (A 82-83). 33 POINT II WHEN THE COURT HAD STRICTLY LIMITED EACH PARTY TO 15 MINUTES OF QUESTIONING FOR EACH ROUND OF JURY SELECTION, THE COURT ERRONEOUSLY RULED THAT DEFENSE COUNSEL'S REASON FOR STRIKING A PROSPECTIVE JUROR, THAT COUNSEL "D[ID]N'T KNOW ANYTHING ABOUT HER" EXCEPT THAT HER COUSIN WAS A POLICE OFFICER, WAS PRETEXTUAL AT STAGE THREE OF THE PROSECUTOR'S BATSON/ KERN CHALLENGE (U.S. CONST. AMENDS. V, XIV; N.Y. CONST., ART. I, §§ 2, 6). Adhering to the court's imposition of a strict 15-minute time limit for each party to question the prospective jurors, defense counsel questioned only nine of the 13 panelists available in the first round. After the prosecutor made a Batson/Kem application based on counsel's use of peremptory strikes against four Asian prospective jurors, the court ruled that counsel's reasons for one of the strikes, that he "d[id]n't know anything about" the panelist except that she was related to a police officer (A 313), was pretextual. This Court has previously held that, when the trial court imposes a strict time limit for each party's questioning, a party can use a peremptory challenge to strike a prospective juror because the party "kn[ ows] little to nothing about" the prospective juror. People v. Hecker, 15 N.Y.3d 625, 658 34 (2010). Therefore, the court clearly erred in ruling that the challenge was pretextual, and appellant was deprived of his right to a jury in whose selection he had a voice. U.S. Const., Amends. V, XIV; N.Y. Const., Art. I, §§ 2, 6; Hecker, 15 N.Y.3d at 658. A defendant's right to exercise peremptory challenges has long been considered essential to his right to be tried by an impartial jury. See Holland v. Illinois, 493 U.S. 474, 481 (1990) (referring to "unbroken tradition" of permitting peremptory challenges); Lewis v. United States, 146 U.S. 370, 376 (1892) (right to challenge prospective jurors "comes from the common law with the trial by jury itself, and has always been held essential to the fairness of trial"). Consistent with this tradition, C.P.L. § 270.25 allots to each party a certain number of peremptory challenges "for which no reason need be assigned." The right to exercise peremptory challenges, however, does not confer upon a party the right to discriminate against a prospective juror on the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986) (holding that Equal Protection Clause forbids prosecution challenges to potential jurors solely on account of race and establishing process to determine whether peremptory challenges are being used discriminatorily); People v. Kem, 75 N.Y.2d 638, 651-53 (1990), cert. denied, 498 U.S. 824 (1990) (applying Batson to use of 35 peremptory challenges by defense). "[P]urposeful racial discrimination in the exercise of peremptory challenges, whether exercised by the prosecution or the defense," is prohibited. Kem, 75 N.Y.2d at 643; see also People v. Payne, 88 N.Y.2d 172, 181 (1996). When one party in a criminal case claims that the other side has used its peremptory challenges to exclude jurors on the basis of their race, the trial court must engage in a three-step process. Payne, 88 N.Y.2d at 181; Hecker, 15 N.Y.3d at 634. First, the party contesting the peremptory challenge must make a prima facie showing that the peremptory strikes are related to the race of the challenged jurors. Payne, 88 N.Y.2d at 181; Hecker, 15 N.Y.3d at 634. Second, if the party making the application establishes an inference of purposeful discrimination, the burden shifts to the opposing party to articulate a race-neutral explanation for striking each prospective juror. Payne, 88 N.Y.2d at 181; Hernandez v. New York, 500 U.S. 352, 358-59 (1991). At the final step, the one at issue here, the trial court must determine whether the opponent of the strike . . . has proved purposeful racial discrimination. The focus at this third step is whether the "race- neutral" explanation is a mere pretext for racial discrimination. The ultimate burden of persuasion at the third stage rests unalterably on the party objecting to the peremptory strikes[.] 36 Payne, 88 N.Y.2d at 172 (internal citations and quotations omitted); see also Purkett v. Elem, 514 U.S. 765, 768 (1995) ("[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike."). In People v. Hecker, 15 N.Y.3d 625 (2010), this Court addressed a situation virtually identical to the one presented here. 5 At the beginning of jury selection in Hecker, the court told the parties that they would each have only 10 minutes to question the prospective jurors in each round. Id. at 635. Two of the Asian panelists in the second round were Chan and Lee. Id. at 636, 660. Defense counsel questioned three panelists before the court stated that she had one minute left. Id. at 636. Counsel then asked two panelists, including Lee, whether they would hold it against the defendant if he did not testify. Id. Lee's response, that he had some "trepidation" about his ability to follow the court's instructions, led to a "lengthy colloquy" about his impartiality, after which the court told counsel that her time to question the prospective jurors had expired. Id. at 636-38. Counsel did not have the opportunity to question Chan. Id. at 638. 5 The Court's decision decided four companion cases, id. at 635, but this discussion concerns only People v. Joseph Hecker. 37 When defense counsel used peremptory strikes against Chan and Lee, the prosecutor made a reverse Batson application, asserting that counsel had removed the "only two Asian jurors questioned so far." Id. Defense counsel, who had unsuccessfully challenged Lee for cause, explained that she struck Lee because of his responses to her questions regarding the defendant's right not to testify. Id. at 639. As to Chan, counsel noted "the brevity of [counsel's] ability to ... question everyone at great length" and explained that she had been "very selective in the short period that [she] had," which was "all of ten minutes." Id. She also stated that Chan appeared to be "extremely austere in her demeanor." The court granted counsel's peremptory challenge of Lee, but ruled that her reason for striking Chan was pretextual. Id. The Appellate Division affirmed the conviction, stating that counsel's "failure to question [Chan]" was a "significant indicator of pretext under the circumstances." Id. at 641. Reversing the conviction, this Court explicitly rejected the People's argument that "defense counsel's choice not to ask Chan 'a single question' [was] an indication of a specific racial bias against [her]." Id. at 657-58. The Court explained: There can be no doubt that the trial judge severely curtailed the parties from questioning the panelists, precluding them from conducting a more 38 meaningful voir dire. Supreme Court specifically informed the parties that they only had 10 minutes to voir dire the panelists in each round. In the second round of jury selection, defense counsel asked questions of only five of the seated 18 panelists. This fact, without more, cannot mean that defense counsel exhibited a bias against Chan or the other 12 unquestioned panelists. Rather, what it more realistically reveals is the impossibility of directing her attention to all of the panelists in the brief time she had to address them. Id. at 657-58. The Court emphasized that, beyond the 10-minute time limit, counsel's questioning was "further cut short by the lengthy colloquy that ensued between the judge and Lee." Id. at 658. Explaining that "the crux of defense counsel's race-neutral explanation to strike Chan was that she knew little to nothing about her," the Court ruled that counsel's "strategy ... was not to avoid or ignore a particular class of prospective jurors based on race but to remove jurors whom either she or both parties did not have time to address." Id. Appellant's case is squarely controlled by Hecker. Here, the court imposed a strict time limit only 15 minutes for each party to question the prospective jurors, which "severely curtailed" their ability to "question[] the panelists" in a "more meaningful" way. Hecker, 15 N.Y.3d at 657. Although the 15-minute time limit imposed in appellant's case was five 39 minutes longer than the 10 minutes allowed in Hecker, counsel spent a significant portion of his time questioning F.G., who was subsequently removed for cause on consent after telling counsel that he had to "prove to me that [appellant] wasn't there" (A 304-05). This necessary, but time- consuming, focus on a single prospective juror significantly reduced the amount of time counsel had to question the rest of the panel. Additionally, as in Hecker, counsel's allocated time was "further cut short by [a] lengthy colloquy" between the court and a prospective juror (F.G.). Id. at 658. As a result, counsel had questioned only nine of the 13 available panelists when his time expired, and Jo.Y. was simply not one of them. As a result, as counsel noted, he did not "know anything about her" (A 313). Under these circumstances, as this Court has explained, counsel's decision not to question Jo.Y. "cannot mean that [he] exhibited a bias against [her]." Hecker, 15 N.Y.3d at 657-58. Therefore, the People were wrong to argue that counsel's reason for striking Yip was pretextual because counsel "had every right to question ... [her] and didn't" (A 314 ). Instead, that counsel did not question Yip "more realistically reveals" the "impossibility of directing [his] attention to all of the panelists in the brief time [he] had." Hecker, 15 N.Y.3d at 657-58. 40 Indeed, five of the six prospective jurors whom counsel peremptorily challenged were individuals whom counsel had not questioned (Jo.Y., LG., Ji.Y., C.C., and Z.M.), suggesting that counsel may well have adopted a "strategy ... to remove jurors whom either [he] or both parties did not have time to address." Id. Furthermore, since two of the panelists counsel challenged but did not question were not Asian (LG. and Z.M.), and one of the prospective jurors who counsel did question was Asian (K.C.), "there is no support in the record to conclude that defense counsel purposely avoided questioning panelists of Asian descent in order to justify peremptorily striking them at a later point." Id. at 658. Therefore, under Hecker, the court plainly erred in ruling that counsel's reason for striking Jo.Y. was pretextual. Furthermore, counsel's statement that Jo.Y. "ha[d] a police officer that's a cousin" (A 313) was an independent race-neutral, non-pretextual reason for challenging her. Because the People's case depended on the credibility of numerous police witnesses, Jo.Y. 's connection to law enforcement was directly related to the case, suggesting that counsel's explanation was not a "mere pretext" for discrimination. See Payne, 88 N.Y.2d at 172. 41 Nor was there any evidence that counsel applied this reason in a discriminatory way. To the contrary, the record demonstrates that counsel pursued a strategy of removing prospective jurors with connections to law enforcement. Counsel began his questioning by asking F.G., who had friends who were police officers, numerous questions about his ability to judge the credibility of police officers. After F.G. was removed for cause on consent, counsel used a peremptory strike against LG., the only remaining prospective juror other than Jo.Y. who had a law enforcement connection. That counsel struck LG., who was not Asian, demonstrates that his strategy was to remove prospective jurors who had a relationship with the police, regardless of their race. Cf. People v. Nieves-Andino, 30 A.D.3d 1137, 1138 (1st Dept. 2006), aff'd, 9 N.Y.3d 12 (2007) (trial court properly found counsel's explanation that he struck juror because of law enforcement connection pretextual, because "counsel did not challenge other jurors with similar law enforcement connections"). Finally, the prosecutor did not even argue that counsel had applied this reason in a discriminatory way. Instead, she stated, inexplicably, that "just having a police cousin" was "not [a] race neutral reason[]" (A 314). Under these circumstances, the People "simply failed to meet their burden" of proving that "racial discrimination was the motivating factor for 42 defendant's challenge." Hecker, 15 N.Y.3d at 661. Therefore, counsel's statement that he struck Jo.Y. because of her law enforcement connection was not a pretext for discrimination. This issue was preserved for appeal by counsel's race-neutral explanation for striking Yip and the court's ruling that it was pretextual (A 313-15). Accordingly, this Court should reverse appellant's conviction and order a new trial. 43 Dated: CONCLUSION FOR THE REASONS SET FORTH IN POINT I, THE COURT SHOULD SUPPRESS THE GUN, REVERSE APPELLANT'S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON IN THE SECOND AND THIRD DEGREES, AND DISMISS THOSE COUNTS OF THE INDICTMENT. ALTERNATIVELY, FOR THE REASONS SET FORTH IN POINT II, THE COURT SHOULD ORDER A NEW TRIAL. March 30, 2016 Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085 By: . A exander Donn Of Counsel New York, New York 44