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MACKENZIE v. PORTUONDO
May 20, 2002
EDWARD MACKENZIE, PETITIONER,
LEONARD A. PORTUONDO, WARDEN, SHAWANGUNK CORRECTIONAL FACILITY, AND THE STATE OF NEW YORK, RESPONDENTS.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Edward MacKenzie ("Petitioner") seeks a writ of habeas corpus with
regard to his 1994 conviction in Nassau County Court for Kidnapping in
the Second Degree (N.Y. Penal Law § 135.20), two counts of Robbery in
the Third Degree (N.Y. Penal Law § 160.05), and Unauthorized Use of a
Motor Vehicle in the First Degree (N.Y. Penal Law § 165.08).
In the afternoon of August 5, 1992, Trisha Krajci walked from her job
at Service Merchandise on Hempstead Turnpike, East Meadow, to her car,
which she parked in a lot adjacent to the store. Ms. Krajci was on her
way to Price Club to buy diapers for her infant son. She entered her
vehicle and sat in the driver's seat for a moment while searching through
her purse to locate her Price Club shopper's card. After Ms. Krajci
started the engine, the Petitioner opened the driver's side door and
pushed his way into the car. Ms. Krajci repeatedly told him to get out.
The Petitioner claimed to have a gun and told her he would kill her if
she continued to resist. He demanded that she move over to the
passenger's seat. Ms. Kracji cried and pleaded with the Petitioner to
release her and take the car. She told him that she had an infant son and
that her husband was a police officer. The Petitioner yelled at Ms.
Kracji, "shut up, I have a gun, I'll fucking kill you." The Petitioner
took the driver's seat, forced Ms. Krajci to lay on the floor, and drove
Eventually the Petitioner allowed Ms. Krajci to sit upright in the
passenger's seat, and she observed they were traveling on the Southern
State Parkway. The Petitioner then forced Ms. Krajci to turn over her
bank card and personal identification number. He drove to a Dime Savings
Bank ATM machine in North Bellmore,
and withdrew three hundred dollars ($300.00) from her account.
After obtaining money from Ms. Krajci's bank account, the Petitioner
drove into Manhattan. He demanded that Ms. Krajci lie down on the seat
again, and this time forced her to remove her shoes. At some point. he
stopped the car, got out, and demanded that Ms. Krajci remain in the
car. He locked the doors, took the keys with him. reminded Ms. Krajci
that he had a gun, and told her he would be able to see her if she tried
to escape. When the Petitioner returned, Ms. Krajci saw that two brown
paper bags and two cans of beer. He threw one of the cans at her and
ordered her to open it. He drank the beer while he drove. The Petitioner
took a glass vial from one of the brown bags, and used a pen from Ms.
Krajci's purse to smoke the vial's contents.
After driving around for approximately fifteen minutes, the Petitioner
stopped the car again. He called out to several men standing in the
street and asked them where he could buy drugs. Two men entered the back
seat of the car and spoke with the Petitioner for several minutes about
where he could purchase drugs. The Petitioner gave money to one man, who
returned shortly, having been unable to buy anything.
The Petitioner resumed driving around the area, hit another car, but
did not stop. Next, Petitioner parked Ms. Krajci's car in a public garage
near Times Square. The Petitioner forced Ms. Krajci out of the car and
into the street, walking behind her toward the corner of 8th Avenue and
42nd Street. Three uniformed New York City Police Officers who were
standing on that corner, reported that, at approximately 4:45 p.m., Ms.
Krajci frantically ran up to them. She was crying hysterically and
grabbed one of the officer's by the arm, yelling. "that man over there,
he took me, he said he's going to kill me. He has a gun." When the
officers asked Ms. Krajci to point out her abductor, she pointed to
Petitioner, who was standing approximately five to ten feet away,
stating, "that white man with the black shirt and blue jeans. He said he
has a gun. If I tell anybody he's going to kill me."
Two of the officers, Philip Repaci and James Fogarty, approached the
Petitioner and asked him to stand with his hands against a nearby wall.
Officer Repaci removed a crack pipe from the Petitioner's left hand. His
pat-down search revealed that the Petitioner carried 69 vials of crack,
four decks of heroin and two shotgun shells in his pocket. After
discovering these items, Officer Repaci told the Petitioner he was under
arrest, and handcuffed one of his hands. Before Officer Repaci could
restrain the Petitioner's other hand, the Petitioner swung around, hit
Officer Repaci with the dangling cuff, and attempted to flee. Officer
Fogarty and several back-up police officers struggled with the Petitioner
and eventually subdued him.
The Petitioner was taken to Roosevelt Hospital for injuries he
sustained while resisting arrest. New York City Detective Robert Fleming
entered the Petitioner's hospital room and read the Miranda rights to
him. The Petitioner indicated that he understood his rights, and he was
willing to speak with the detective. The Petitioner identified himself as
Robert Burns, and claimed to have met Ms. Krajci at a night club several
week earlier and got together with her at a Burger King restaurant a few
days before this incident. The Petitioner claimed that Ms. Krajci
consented to the entire day. The Petitioner stated that he and Ms. Kracji
met in Foodtown that afternoon, and she agreed to drive him into
Manhattan to purchase drugs. He claimed that Ms. Kracji withdrew money
from a bank. The Petitioner also admitted that he purchased sixty vials
of crack for $180 and smoked several vials while driving around
Later that evening, Nassau County Detective John Kouril attempted to
question the Petitioner. Detective Kouril entered the Petitioner's
hospital room, introduced himself, and told the Petitioner he was
investigating a kidnapping. He read the Miranda warnings to the
Petitioner and asked him if he understood his rights. The Petitioner did
not respond. Detective Kouril asked the Petitioner if he would sign the
rights card and answer questions without consulting an attorney. The
Petitioner refused, and told Detective Kouril twice to "get out [his]
fuckin' face." Detective Kouril told the Petitioner that he would return
for him, and the Petitioner responded, "I took her from Nassau. The New
York City Police arrested me. Fuck you. You lose. You can't take me
On March 23, 25, and 26, 1993, the court held a suppression hearing and
determined that the Petitioner's statements to Detective Kouril were
admissible at trial. See Order dated May 26, 1993, of Supreme Court,
Nassau County (Goodman, J.) at 1-5.
On January 14, 1994, the Petitioner's jury trial began in Supreme
Court, Nassau County (Goodman, J.). The Petitioner represented himself
throughout the trial. The jury convicted the Petitioner of Kidnapping in
the Second Degree, Robbery in the Third Degree, and Unauthorized Use of a
Motor Vehicle in the First Degree. On March 16, 1994, Justice Goodman
sentenced the Petitioner, as a persistent felony offender, to four
concurrent indeterminate terms of twenty-five years to life.
The Petitioner directly appealed his conviction to the Appellate
Division, Second Department, alleging ten points of error: (1) the trial
court erred in denying the Petitioner's motion for dismissal of the
indictment; (2) the Petitioner's conviction should be vacated because he
was forced to testify before the Grand Jury wearing his prison uniform;
(3) the prosecution failed to provide race-neutral reasons for its
Batson challenges; (4) the prosecution failed to disclose Rosario
material at the suppression hearing; (5) the trial court erred in
admitting evidence of the crack vials and heroin decks; (6) the trial
court's denial of the Petitioner's motion for a bill of particulars
prevented him from preparing a defense and deprived him of a fair trial;
(7) the trial court erred in not applying the "merger doctrine" to
dismiss the Kidnapping charge; (8) the trial court erred in admitting the
Petitioner's statement; (9) the verdict was against the weight of the
evidence; and (10) the Petitioner's sentence was harsh and excessive.
On September 30, 1996, the Appellate Division, Second Department
remitted the matter to the trial court for a hearing on the Petitioner's
speedy trial and Batson claims. See People v. Mackenzie, 231 A.D.2d 740,
741, 647 N.Y.S.2d 825 (2d Dept. 1996). After a hearing in Supreme Court,
Nassau County, Justice Goodman found that the Petitioner's speedy trial
rights had not been violated, nor had the prosecutor used his peremptory
challenges based on race. See Order dated December 4, 1996, of Supreme
Court, Nassau County (Goodman, J.) at 1-3.
On September 29, 1997, the Appellate Division, Second Department,
affirmed the Petitioner's conviction, finding that the record supported
the trial court's determination that a Batson violation had not
occurred; that the trial court properly denied Petitioner's motion to
dismiss the indictment on speedy trial grounds; and that the remaining
issues were without merit. See People v. MacKenzie, 242 A.D.2d 739, 740,
664 N.Y.S.2d 947 (2d. Dept. 1997). On June 2, 1998, the Court of Appeals
denied leave to appeal. See
People v. Mackenzie, 92 N.Y.2d 855, 677 N.Y.S.2d 86, 699 N.E.2d 446
On December 22, 1998, the Petitioner moved to vacate the judgment of
conviction, pursuant to N.Y.Crim. Proc. Law § 440.10(h), alleging
that he was mentally incompetent to stand trial; that the trial court
erred in not ordering a psychiatric evaluation of the Petitioner; and
requesting a competency hearing in response to his motion.
By order dated March 8, 1999, the County Court, Nassau County (Kowtna,
J.) denied the Petitioner's motion to vacate without opinion. The
Petitioner sought to renew and reargue his motion to vacate the
conviction in County Court, and also sought leave to appeal Judge
Kowtna's decision from the Appellate Division. On May 20, 1999, the
Appellate Division, Second Department, denied leave to appeal. On August
5, 1999, the Appellate Division denied the Petitioner's motion to reargue
his motion to vacate the conviction.
On July 28, 1999, the Petitioner filed three actions for writ of habeas
corpus, pursuant to 28 U.S.C. § 2254. It is unclear why the
Petitioner simultaneously filed three separate actions, rather than
consolidating his arguments into one petition, especially since many of
his allegations overlap. For judicial economy, the Court will address the
Petitioner's three pending actions in this decision.
In his applications, the Petitioner argues the following grounds: (1)
that he was denied due process during the grand jury proceedings; (2)
that the indictment was insufficient and the trial court erred in denying
his motion for a bill of particulars; (3) that his speedy trial rights
were denied; (4) that the prosecution withheld Rosario material; (5) that
the prosecutor used his peremptory challenges in a racially
discriminatory manner in violation of the Petitioner's Batson rights; (6)
that the trial court erred in its jury instruction by excluding a "prior
crimes" charge and by giving a misleading "burden of proof' instruction
on Robbery in the Third Degree; (7) that appellate counsel was
ineffective for failing to raise a mental incapacity claim and for
initially refusing to represent the Petitioner at a post-trial hearing;
and his second appellate counsel was ineffective because she allegedly
did not know anything about his case; (8) that his sentence is
excessive; (9) that the prosecution withheld evidence in violation of the
Petitioner's Brady rights; (10) that the trial court erred in not
applying the "merger doctrine" to dismiss the Kidnapping charge; (11) that
the trial court erred in not dismissing the Unauthorized use of a Motor
Vehicle charge as a lesser included offense of Robbery; (12) that the
verdict was against the weight of the evidence; (13) that the
Petitioner's statement to Detective Kouril was obtained in violation of
his Miranda rights; (14) that the Petitioner's conviction was obtained in
violation of his due process rights because he was mentally incapacitated
during trial; (15) that the Petitioner is innocent; (16) that prosecution
and "appellate level officials" committed felony offenses at the trial
and appellate level, thus the Petitioner's conviction was obtained in
violation of his constitutional rights; (17) that certain laws are
The Petitioner filed this action after the April 24, 1996, effective
date of the Anti-terrorism and Effective Death Penalty Act of 1996
("AEDPA"). Accordingly, AEDPA's provisions apply to the Petitioner's
case. See Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146
L.Ed.2d 435 (2000).
A decision is "contrary to" established Federal law if it either
"applies a rule that contradicts the governing law set forth in" a
Supreme Court case, or if it "confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [their] precedent." Penry
v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001);
citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). A decision is an `unreasonable application of' clearly
established Supreme Court precedent if it "correctly identifies the
governing legal rule but applies it unreasonably to the facts of a
particular prisoners s case." Id.
A petitioner seeking habeas relief under Section 2254 is required to
first exhaust his claims through the state courts. See 28 U.S.C. § 2254
(b)(1); see also Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). This
procedure is intended to give state courts the first opportunity to
correct errors of constitutional magnitude. See Rose v. Lundy,
455 U.S. 509, 515-16, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). To satisfy
the AEDPA's exhaustion requirements, a petitioner must have presented the
substance of the same federal constitutional claims in his habeas
petition to the highest state court. See Aparicio, 269 F.3d at 89-90. "In
order to have fairly presented his federal claim to the state courts, the
petitioner must have informed the state court of both the factual and
legal premises of the claim he asserts in federal court." See Daye v.
Attorney Gen'l, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Where "`the petitioner failed to exhaust state remedies and the court
to which the petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims procedurally
barred,' federal habeas courts also must deem the claims procedurally
defaulted." See Aparicio, 269 F.3d at 90 (quoting Coleman v. Thompson,
501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The
Court will not review the merits of a procedurally defaulted claim unless
the petitioner can show (1) cause for the default and actual prejudice
resulting therefrom; and (2) that failure to consider the claim will
result in a fundamental miscarriage of justice. See Bossett v. Walker,
41 F.3d 825, 828 (2d Cir. 1994).
Here, many of the issues raised in the petitions and reply were not
presented to the New York State Courts. Petitioner did not raise claims 6
(jury instructions), 7 (ineffective assistance of appellate counsel), 9
(Brady), 11 (dismissal of Unauthorized use of a Motor Vehicle charge as
lesser included offense of Robbery), 13 (Miranda), 15 (actual
innocence), 16 (felonies committed by prosecution and other officials),
and 17 (constitutionality of procedural laws) on direct appeal to the
Second Department or in his § 440 motion. Accordingly, the Petitioner
has failed to exhaust state remedies with respect to claims 6, 7, 9, 13,
15, 16, and 17.
Moreover, the Petitioner has not alleged any cause for the default in
presenting those claims to the state courts; notably, the Petitioner's
ineffective assistance of appellate counsel claim does not include
failure to raise any of those issues. The Petitioner does not otherwise
attempt to explain why he failed to argue those issues to the state
courts. Accordingly, this Court finds that those issues have not been
preserved for appeal here, and deems claims 6, 7, 9, 11, 13, 15, 16, and
17 to be procedurally defaulted.
Although the Petitioner's claims are unexhausted and procedurally
barred, the Second Circuit recently held that where a petitioner is
clearly not entitled to habeas relief, the Court may address unexhausted
claims on the merits so as not to waste further state or federal
resources. See Jones v. Senkowski, 2002 WL 246451 at *3 (2d Cir. Oct. 5,
2001). "Where there is no further state proceeding for petitioner to
pursue or where further pursuit would be futile," the Court may address
the merits of an unexhausted claim. See Lurie v. Wittner, 228 F.3d 113,
124 (2d Cir. 2000). The standard is that the Court may dismiss an
unexhausted claim on the merits if it is obvious that the claim is not
one upon which habeas relief may be granted. See Jones, 2002 WL 246451 at
*4. Because the Petitioner is clearly not entitled to habeas relief on
any of the grounds he asserts in his petition, the Court will address
each issue, including those that are unexhausted, on the merits herein.
B. As to the Grand Jury claims
Petitioner alleges that various defects in the grand jury proceeding,
including that he was not given adequate notice of the proceeding and
forced to wear his prison clothes, caused him prejudice and deprived him
of a fair trial.
A petit jury's guilty verdict transforms any defect in the grand jury
proceedings into harmless error by confirming that the state had probable
cause to indict the Petitioner and that he was actually guilty beyond a
reasonable doubt. See United States v. Mechanik, 475 U.S. 66, 70, 106
S.Ct. 938, 941, 89 L.Ed.2d 50 (1986). Thus, constitutional challenges to
state grand jury proceedings are not cognizable for federal habeas
review. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); see also
Velez v. People of New York, 941 F. Supp. 300, 315-16 (E.D.N.Y. 1996).
Accordingly, this claim is dismissed.
C. As to the Sufficiency of the Indictment
Petitioner contends that the indictment did not give him fair notice of
the nature of the charges against him, and that the trial court erred in
denying his motion for a bill of particulars.
Generally, a claim of an insufficient state indictment is not
reviewable by a federal habeas court unless the indictment falls below
basic constitutional standards. See Beverly v. Walker, 899 F. Supp. 900,
908 (N.D.N.Y. 1995) (citing Carroll v. Hoke, 695 F. Supp. 1435, 1438
(E.D.N.Y. 1988), aff'd 880 F.2d 1318 (2d Cir. 1989)). An indictment is
satisfactory when it defines a crime (1) "`with sufficient precision to
inform the defendant of the charges he must meet'" and (2) "`with enough
detail that he may plead double jeopardy in a future prosecution based on
the same set
of events.'" DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994) (quoting
United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert.
denied, 504 U.S. 926, 112 S.Ct. 1982, 118 L.Ed.2d 580 (1992)). An
indictment that states the time, place and essential elements of the
alleged offense will meet constitutional standards. See Beverly,
899 F. Supp. at 909.
Applying those standards, the Court finds the indictment in the instant
case passes constitutional muster. Each count of the indictment specifies
the time and place where the alleged crimes occurred and sets forth the
essential elements of those crimes. The indictment sufficiently informed
the Petitioner of the charges against him. See Carroll, 695 F. Supp. at
1438-39. Further, the prosecution provided the Petitioner with the grand
jury transcript and voluntary disclosure forms. Thus, the Petitioner was
adequately informed of the charged crimes. Accordingly, this claim is
D. As to the Speedy Trial claim
Petitioner alleges that because approximately 17 months elapsed from
the date the State filed the complaint, August 6, 1992, to the date trial
commenced, January 14, 1994, his speedy trial rights were violated.
The right to a speedy trial is guaranteed by the Sixth Amendment, and
imposed upon the states through the Due Process Clause of the Fourteenth
Amendment. See Rayborn v. Scully, 858 F.2d 84, 88 (2d Cir. 1988), cert.
denied, 488 U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989). The four
factors to determine whether the Petitioner's speedy trial rights have
been violated are: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant's assertion of his speedy trial right; and (4)
any prejudice resulting from the delay. See Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Under the AEDPA, the Court must presume that factual findings by the
state court are correct and the Petitioner bears the burden of rebutting
this presumption by clear and convincing evidence. See Boyette, 246 F.3d
at 88 (citing 28 U.S.C. § 2254 (e)(1)). The trial court conducted a
hearing and determined that the Petitioner's speedy trial claim had no
merit, and the Appellate Division affirmed this decision. See People v.
MacKenzie, 242 A.D.2d 739, 740, 664 N.Y.S.2d 947 (2d. Dept. 1997).
Specifically, the court found
that at most, 125 days may be attributable to the
The periods from October 19 to October 21, 1992,
March 18 to March 23, 1993 and March 26 to May 25,
1993, totaling 66 days, were delays occasioned by
Court congestion or scheduling. For certain periods
from February 1 to February 10, 1993 and February 23
to March 5, 1993, totaling 19 days, the record is
unclear as to the reasons for the adjournments.
Contrary to [the Petitioner's] position, [the
Petitioner] was incarcerated in Nassau County from
January 14 to April 21, 1993 (see, People's Exhibit
26). Accordingly, none of the delays during that time
frame are includable time for that reason. Thirteen
days from March 5 to March 18, 1993, are attributable
to the People because the wrong witness was subpoenaed
for [the Petitioner's] hearing. Finally, included in
this calculation are the 27 days conceded by the
All of the remaining delays were occasioned by the
defense for motions, including an Article 78
proceeding, or adjournments on consent and as such may
not be used in computing the time within which the
People must be ready for trial. [N.Y. Penal Law §
Therefore, [the Petitioner] was not denied his
statutory right to a speedy trial.
Order dated December 4, 1996, of Supreme Court, Nassau County (Goodman,
J.) at 2-3.
These factual findings are entitled to a presumption of correctness by
this Court. The Petitioner has not met his burden of overcoming this
presumption by clear and convincing evidence; that is, he has not
demonstrated that the length of the delay was unreasonable or
attributable to the prosecution.
Further, the Petitioner has not shown that any delay caused him
prejudice, the factor that "frequently weighs heaviest in considering a
speedy trial challenge." Morales v. Keane, 1995 WL 235222 (E.D.N.Y. April
13, 1995). The Petitioner does not allege nor explain any prejudice to
his case, and there is no indication that his defense was impaired due to
the delay. Accordingly, the Petitioner's speedy trial claim fails.
E. As to the Rosario claim
The Petitioner argues that the prosecution's failure to disclose
Rosario material denied him a fair trial.
Habeas relief is available only for claims that the Petitioner's
conviction violated Federal constitutional law. See Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rosario is a
New York state evidentiary rule, and the state courts have stressed that
the rule is not based on the Federal Constitution. See People v.
Jackson, 78 N.Y.2d 638, 644, 578 N.Y.S.2d 483, 585 N.E.2d 795 (1991)
("Rosario is not based on the State or Federal Constitution. It is, in
essence a discovery rule. . . ."). Thus, any error under Rosario is not
reviewable in a habeas petition. See Padro v. Strack, 169 F. Supp.2d 177,
180-81 (S.D.N.Y. 2001) (holding Rosario claim not cognizable under
federal review); Williams v. Bennett, 2001 WL 849746 at *7 (S.D.N.Y. July
27, 2001) ("It is well established that a claim of a Rosario violation
. . . without more, does not present a constitutional issue."); Bell v.
Albaugh, 2000 WL 1877103 at *6 (S.D.N.Y. Dec. 27, 2000) ("Rosario claim
is `purely a matter of state law,' and thus not cognizable on federal
habeas review.") (quoting Maddaloni v. Griever, 1999 U.S. Dist. LEXIS
15686, at *29 (S.D.N.Y. Oct. 7, 1999)). Accordingly, the Petitioner's
Rosario claim is dismissed.
F. As to the Batson claim
The Petitioner alleges that the prosecution impermissibly used its
peremptory challenges to exclude black members of the jury in violation of
his constitutional rights.
The Supreme Court ruled in Batson that the Equal Protection Clause of
the Fourteenth Amendment "forbids the prosecutor to challenge potential
jurors solely on account of their race." Batson v. Kentucky, 476 U.S. 79,
89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). To establish a Batson
violation, a defendant must first make a prima facie showing of
intentional discrimination. Id. at 96, 106 S.Ct. 1712. A pattern of
peremptory strikes against jurors of a particular race is sufficient to
raise an inference of impermissible discrimination. See Jordan v.
Lefevre, 206 F.3d 196, 200 (2d Cir. 2000); Tankleff v. Senkowski,
135 F.3d 235, 249 (2d Cir. 1998).
After a hearing, at which the Petitioner was represented by counsel,
the trial court found that the prosecutor had not used his peremptory
challenges in a racially motivated manner. The court held
[o]n the Batson issue, both sides were given the
opportunity to argue whether, . . . the four jurors
Fox, Sumpter, Wilson and Mosley, were excluded by the
People for racially motivated reasons.
This Court concludes that the [Petitioner] has not
met his burden of proof, and that the People's
motivation for the four peremptory strikes was not
racially discriminatory. In a trial that otherwise did
not raise any racial issues, the People's reasons for
exclusion were logical and relevant.
Mr. Fox's brother had been murdered. Granted, many
jurors had family members who were victims of crimes,
but the nature of this particular crime offers the
reasonable assumption that the juror could be
distracted or traumatized. Further, Mr. Fox could have
maintained negative feelings for the criminal justice
system as a whole because of this unfortunate event.
The reasons proffered for the exclusion of Ms.
Sumpter was likewise not racially motivated. She had
been the victim of several crimes but she was not
excluded solely on that basis. The prosecutor's good
faith in challenging Ms. Sumpter was supported by her
failure to report to the police these several crimes,
presenting the inference that she may have failed to
do so due to a mistrust of the police department.
Next, the striking of Mr. Wilson as a juror was
well-justified upon two grounds. Not only was he
previously prosecuted by the Nassau County District
Attorney's Office, but he also exhibited an improper
or suspect demeanor in the courtroom. Mr. Wilson's
criminal case was ultimately dismissed, but rather
than assuming he could be fair to the prosecution, as
was claimed by the juror, an equal if not overriding
assumption could be that Mr. Wilson would be biased or
Finally, the challenge of Ms. Mosley on the basis
that she might be distracted because of an up-coming
business trip was based on logical, not racial,
reasoning. Although some attorneys may have opted to
keep Ms. Mosley as a juror and others may have agreed
with the prosecutor's explanation, a division of
opinion is not determinative under a [Batson]
The ultimate burden of persuasion that the People's
explanation was pre-textual is, in this ...