PEOPLE v. WILMOT

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. David WILMOT, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., MARTOCHE, CENTRA, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Megan Misiti of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Susan C. Ministero of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him, following a jury trial, of murder in the second degree (Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ), defendant contends that Supreme Court erred in permitting the prosecutor to exercise a peremptory challenge to exclude a black prospective juror. We agree.   Following defendant's Batson objection, the prosecutor explained that he was exercising the peremptory challenge because of the age and lack of “lifelong experience” of the juror.  “[W]hile age is, facially, a race-neutral reason for a peremptory challenge to a juror, an explanation based upon age can become pretextual if it bears no relationship to the facts of the case ․, or if other jurors of a similar age are not objected to on that ground” (People v. Smalls, 249 A.D.2d 495, 495, 671 N.Y.S.2d 678, lv. denied 92 N.Y.2d 986, 683 N.Y.S.2d 767, 706 N.E.2d 755).   Here, the fact that the prospective juror at issue was 19 years old bore no relationship to the facts of the case (see People v. Burroughs, 295 A.D.2d 959, 744 N.Y.S.2d 608, lv. denied 99 N.Y.2d 534, 752 N.Y.S.2d 594, 782 N.E.2d 572).   Further, the prosecutor did not exercise a peremptory challenge to exclude a 22-year-old white male prospective juror who had a similar background with respect to his education and living arrangement.   We thus conclude that the prosecutor's explanation was pretextual, and we reverse the judgment of conviction and grant a new trial (see id.).   Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   In view of our determination, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: