PEOPLE v. STEWART (1997)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered October 24, 1995, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 On appeal, the only issue raised by the defendant concerns whether he provided the trial court with a sufficient race-neutral explanation for peremptorily challenging juror # 11.   Thus, this court's review in the instant case focuses only on steps two and three of the three-step process in determining whether an exercise of a peremptory strike is infected by purposeful discrimination (see, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542).

At step two, the “ ‘explanation’ required of a striking party is quite minimal, and mere facial race neutrality fulfills the burden of production” (see, People v. Payne, 88 N.Y.2d 172, 183, 643 N.Y.S.2d 949, 666 N.E.2d 542).   Although the explanation offered by one exercising a peremptory challenge need not be “persuasive or even plausible” (People v. Payne, supra, at 183, 643 N.Y.S.2d 949, 666 N.E.2d 542), the party exercising the peremptory challenge must at a minimum, state some reason.   Here, the defendant's purported explanation, that he did not have enough information about the venire person in question and that his peremptory challenge had nothing to do with race, amounts to an admission that he had no explanation.   To the extent that the defendant asserted, in conclusory terms, that his reason for peremptorily striking the juror in question was not related to race, this mere “assertion of good faith as a sufficient race-neutral explanation” must be rejected (see, People v. Williams, 210 A.D.2d 361, 363, 620 N.Y.S.2d 85;  People v. Hameed, 183 A.D.2d 847, 584 N.Y.S.2d 94, affd. 88 N.Y.2d 232, 644 N.Y.S.2d 466, 666 N.E.2d 1339, cert. denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 ).   That the defendant, essentially, offered no reason at all with respect to his challenge of the juror is dispositive of the Batson issue (see, People v. Williams, supra;  People v. Brown, 193 A.D.2d 611, 612, 597 N.Y.S.2d 434).

Even if this court were to find that the defendant's statement that he did not have enough information about juror # 11 was a facially race-neutral explanation, the record developed in the trial court provided a sufficient basis to conclude that this explanation was, ultimately, pretextual (see, People v. Payne, supra, 88 N.Y.2d, at 185, 643 N.Y.S.2d 949, 666 N.E.2d 542).   Although the trial court did not use the word “pretext”, based upon the court's language that the defendant's explanation “[did not] appear to be a reason at all”, the finding of pretext is reasonably inferred and supported (see, People v. Payne, supra).   Upon review of the information elicited from the various venirepersons, the defendant knew as much, if not less, about several unchallenged venirepersons who were ultimately seated, than he did about juror # 11.

 The trial court's determination is entitled to great deference on appeal and should not be disturbed where, as here, it is supported by the record, and there is no evidence establishing that the court committed “clear error” (see, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Richie, 217 A.D.2d 84, 87, 635 N.Y.S.2d 263;  People v. Jones, 213 A.D.2d 677, 624 N.Y.S.2d 209, mod on other grounds 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542;  People v. Bailey, 200 A.D.2d 677, 606 N.Y.S.2d 757).

MEMORANDUM BY THE COURT.