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MACKENZIE v. PORTUONDO

May 20, 2002

EDWARD MACKENZIE, PETITIONER,
V.
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 away.

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 Manhattan.

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 back."

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 (1998).

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 unconstitutional.

DISCUSSION

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. As to exhaustion

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.

Under New York law, the Petitioner is not entitled to seek review from the state courts on any of these claims. See 22 N.Y.C.R.R. § 500.10(a) (failing to raise issues before Court of Appeals precludes further review because the Petitioner has already made the one application for leave to appeal to which he is entitled); N.Y.Crim. Proc. Law § 440.10 (barring collateral review if claim could have been raised on direct appeal or in prior 440 motion but was not); see also Bossett, 41 F.3d at 829.

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 dismissed.

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 People.
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 People.
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 § 30.30(4)].
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).

Once the defendant makes out a prima facie case of racial discrimination, the burden shifts to the prosecution to provide a race-neutral explanation for the peremptory challenges. Id. at 97, 106 S.Ct. 1712. The proffer of this reason need not be as detailed or thorough as required to justify a for-cause challenge, however, the prosecutor must "articulate a neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. 1712. After considering the direct and circumstantial evidence, and the prosecutor's neutral explanation for the exercise of particular challenges, the trial court must determine whether the defendant has established purposeful discrimination. Id. A trial court's findings, on direct review and especially on habeas review, must be given great deference. Id. & n. 21.

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 bitter.
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] analysis.
The ultimate burden of persuasion that the People's explanation was pre-textual is, in this ...

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