THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CRAIG DAVIS DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CRAIG DAVIS, DEFENDANT–APPELLANT.

KA 14–02227

Decided: November 09, 2018

PRESENT:  WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts each of rape in the second degree (Penal Law § 130.30[1] ), criminal sexual act in the second degree

(§ 130.45[1] ), and sexual abuse in the third degree (§ 130.55), and one count of endangering the welfare of a child (§ 260.10[1] ).  On a prior appeal, we determined that defendant met the initial burden on his Batson application, but we held the case, reserved decision and remitted the matter to County Court for the People to articulate a nondiscriminatory reason for striking an African–American prospective juror, and for the court to determine whether the proffered reason was pretextual (People v. Davis, 153 AD3d 1631, 1631–1632 [4th Dept 2017] ).  Upon remittal, the court conducted a hearing and determined that the reason proffered by the People for the peremptory challenge was nondiscriminatory and not pretextual.

We agree with defendant that the People failed to meet their burden at step two of the Batson analysis to articulate a “race-neutral reason” for striking the prospective juror (People v. Hecker, 15 NY3d 625, 655 [2010], cert denied 563 U.S. 947 [2011];  see Batson v. Kentucky, 476 U.S. 79, 98 [1986] ).  On remittal, the prosecutor testified that he did not remember his reason for striking the prospective juror at issue, but stated that it had “nothing to do with race.”  The prosecutor testified that, instead, “there was something on [the prospective juror's] jury questionnaire ․ that [he] did not particularly like,” which would have provided a basis for exercising a peremptory challenge if he “could not clarify [that] issue” during voir dire.  The prosecutor, however, had no recollection of the subject prospective juror's actual questionnaire, which, apparently, was not preserved.

We conclude that the prosecutor's articulated reason for striking the only African–American prospective juror was insufficient to satisfy the People's burden.  As noted, the prosecutor could not recall a specific reason for striking the prospective juror, but rather assured the court in a conclusory fashion that the challenge was not based on race and was based, instead, on “something” in the prospective juror's questionnaire.  Thus, the prosecutor's explanation “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith” (People v. Dove, 172 A.D.2d 768, 769 [2d Dept 1991], lv denied 78 N.Y.2d 1075 [1991] [internal quotation marks omitted];  see Purkett v. Elem, 514 U.S. 766, 769 [1995];  Batson, 476 U.S. at 98;  People v. Bolling, 79 N.Y.2d 317, 320 [1992];  see also People v. Bridgeforth, 28 NY3d 567, 576 [2016];  People v. Davis, 253 A.D.2d 634, 635–636 [1st Dept 1998];  People v. Mims, 149 A.D.2d 948, 949 [4th Dept 1989], lv denied 74 N.Y.2d 744 [1989], lv dismissed 76 N.Y.2d 792 [1990] ).  Where, as here, “the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, ․ precedents require that [defendant's] conviction be reversed” (Batson, 476 U.S. at 99).  We therefore reverse the judgment and grant a new trial (see People v. Mallory, 121 AD3d 1566, 1568 [4th Dept 2014];  Mims, 149 A.D.2d at 948;  see also Batson, 476 U.S. at 99).

In view of our determination, we do not address defendant's remaining contentions.

Mark W. Bennett

Clerk of the Court