The People, etc., respondent, v. Diamonte Alexander, appellant.

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

The People, etc., respondent, v. Diamonte Alexander, appellant.


Decided: January 09, 2019

RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JEFFREY A. COHEN ROBERT J. MILLER, JJ. Paul Skip Laisure, New York, N.Y. (Sean H. Murray of counsel), for appellant.

Argued—October 9, 2018


Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered October 24, 2016, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

The Supreme Court should not have granted the prosecutor's peremptory challenge to a prospective black juror because the court failed to determine whether the prosecutor provided sufficient race-neutral explanations for challenging the potential juror (see Batson v. Kentucky, 476 U.S. 79;  People v. Kern, 75 N.Y.2d 638).  New York courts apply the three-step test of Batson v. Kentucky (476 U.S. 79) to determine whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason (see People v. Smocum, 99 N.Y.2d 418, 421–422;  People v. Carillo, 9 AD3d 333, 334).  “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 nonmoving 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” (People v. Carillo, 9 AD3d at 334;  see People v. Smocum, 99 N.Y.2d at 421–422).

Here, during jury selection, the defendant alleged that the prosecutor was exercising a peremptory challenge to a potential juror based solely on the potential juror's race.  After the Supreme Court found that the defendant made a prima facie showing that the prosecutor was exercising her peremptory challenges in a discriminatory manner, the prosecutor stated that she believed this potential juror to be too young and inexperienced to serve on a murder trial.  The court allowed for further questioning of this potential juror and, based on this additional questioning, determined that the potential juror seemed to have difficulty understanding the questions posed to him, that he appeared to have “a glazed-eye look,” and that his “ability to communicate is somewhat impaired.”  The court then allowed the prosecutor to exercise a peremptory challenge against the potential juror, deeming the peremptory challenge to be not “in any way based on any discrimination.”  However, the court never provided a ruling on the defendant's initial Batson challenge, relating to the prosecutor's contention that the juror was too young and inexperienced to serve.

Under these circumstances, the Supreme Court failed in its duty to determine whether the prosecutor's race-neutral explanations were credible (see Miller–El v. Cockrell, 537 U.S. 322, 339;  see also United States v. Taylor, 636 F3d 901, 905 [7th Cir] [“when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact”] ).  As the court did not satisfactorily determine whether the prosecutor provided legitimate nonpretextual, race-neutral explanations for the exercise of her peremptory challenges, the judgment of conviction must be vacated and a new trial ordered (see People v. Jenkins, 75 N.Y.2d 550, 560;  see also People v. Hecker, 15 NY3d 625, 652).

In light of our determination, we need not address the defendant's remaining contentions concerning his sentence.



Aprilanne Agostino

Clerk of the Court

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