PEOPLE v. CARILLO (2004)

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered April 9, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously reversed, on the law, and the matter remanded for a new trial.

Defendant was convicted of selling one bag of cocaine to an undercover officer.   On appeal, he argues that the trial court erroneously denied his Batson challenge with respect to the prosecution's exercise of peremptory challenges to exclude two Hispanic prospective jurors.   We find that defendant has demonstrated that the prosecutor's peremptory challenge as to one of the two Hispanic jurors was based on an impermissible discriminatory motive, and therefore, we reverse and remand for a new trial.

During the first two rounds of jury selection involving sixteen venirepersons each, the prosecutor exercised peremptory challenges against one of the four Hispanics on the first panel and five of the eight Hispanics on the second panel.   Defendant is a male Hispanic.   Noting that six out of eight of the prosecutor's peremptory challenges were exercised against Hispanics, defense counsel raised a Batson challenge.   The court directed the prosecutor to provide race-neutral reasons for his peremptory challenges of each Hispanic prospective juror.

Insofar as relevant to this appeal, the prosecutor stated that he challenged a male Hispanic juror because he responded to a question regarding the presumption of innocence “in a very positive way.”   Regarding a challenged female Hispanic juror, the prosecutor stated that he challenged her because he “just did not get a good feel from her ․ it was nothing in particular.”   The court ruled that the reasons advanced by the prosecutor were “race neutral,” after which both sides made further argument on the issue of pretext. The court denied the Batson challenge.   We reverse.

 New York courts apply the three-step test of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 in determining whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason (People v. Smocum, 99 N.Y.2d 418, 419-420, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges;  the second step shifts the burden to the non-moving party to provide race-neutral reasons for each juror being challenged;  and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination (id. at 421-422, 757 N.Y.S.2d 239, 786 N.E.2d 1275).

 In this case, the trial court erred in skipping the first step of the Batson inquiry by failing to require defense counsel to demonstrate a prima facie showing of discrimination (id. at 422-423, 757 N.Y.S.2d 239, 786 N.E.2d 1275).   However, the issue became moot once the People were required to state their reasons for the challenges and the court ruled on the ultimate issue of discrimination (id. at 423, 757 N.Y.S.2d 239, 786 N.E.2d 1275).

 Nevertheless, although a trial court's rulings on the issue of pretext are entitled to great deference because of its unique position to assess the credibility of the juror's responses and the attorney's explanations (see People v. Hernandez, 75 N.Y.2d 350, 356, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Ware, 303 A.D.2d 173, 174, 760 N.Y.S.2d 1, lv. denied 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423), the court's ruling that the prosecutor's reason for challenging the female Hispanic juror was not pretextual cannot be sustained.

The prosecutor's explanation that he challenged this juror because he “just did not get a good feel from her ․ it was nothing in particular” is the type of vague, non-specific and, thus, highly suspicious reason that we have previously held leads to an inescapable inference of discriminatory motive (see People v. Jackson, 213 A.D.2d 335, 336, 623 N.Y.S.2d 881, appeal dismissed 86 N.Y.2d 860, 635 N.Y.S.2d 939, 659 N.E.2d 761;  see also United States v. Horsley, 864 F.2d 1543, 1546).   Since the prosecutor's explanation amounted to, in essence, no explanation at all, defendant has succeeded in establishing an equal protection violation (see People v. Allen, 86 N.Y.2d 101, 109, 629 N.Y.S.2d 1003, 653 N.E.2d 1173;  People v. Davis, 253 A.D.2d 634, 636, 677 N.Y.S.2d 541).

 In light of our holding, it is unnecessary to review defendant's arguments with respect to the male Hispanic juror.  “Because the exclusion of even a single juror on racial grounds is constitutionally forbidden (see People v. Bolling, 79 N.Y.2d 317, 321 [582 N.Y.S.2d 950, 591 N.E.2d 1136] ), defendant has sustained his Batson claim and a new trial [must be] ordered” (People v. Chambers, 80 N.Y.2d 519, 530, 591 N.Y.S.2d 990, 606 N.E.2d 1381).