Appeal from judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered January 31, 2007, convicting defendant, after a jury trial, of coercion in the first degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, held in abeyance and the matter remitted to Supreme Court for a Batson hearing for the People to articulate neutral explanations for the exercise of their peremptory challenges and for the court to determine whether the proffered reasons are pretextual.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Friedman, Moskowitz, Renwick, Freedman, JJ.
The court erred in its determination that defense counsel failed to make a prima facie case of sexual discrimination in the prosecutor's exercise of peremptory challenges. In this case against a defendant accused of physical and sexual abuse of his girlfriend, during the first round of challenges, the prosecution used five peremptory challenges all against men (including two African-Americans and one Hispanic male). Defense counsel accused the People of using their challenges discriminatorily when they challenged "all male[s]" and "[did] not "challenge a single female." We disagree with the court's finding that "no pattern [was] established ... in any of these challenges." The People's use of their challenges constituted prima facie discrimination, and the trial court erred in failing to require the prosecutor to give neutral explanations for those challenges (People v Luciano, 44 AD3d 123 , affd on other grounds, 10 NY3d 499  [Defendant's exercise of peremptory challenges against all five female panelists constituted a discriminatory pattern based on gender]; see People v Harris, 283 AD2d 520, 520  [the People "established a prima facie case of discrimination" when "defense counsel peremptorily challenged four of the five remaining white venirepersons in the second round of jury selection"); People v Vega, 198 AD2d 56, 56 , lv denied 82 NY2d 932  [the People "established a prima facie case of purposeful racial discrimination in the use of peremptory challenges when they established that the defense used 7 of its 8 challenges to exclude all but one of the white persons on the panel of 16"]; see also People v Rosado, 45 AD3d 508  [numerical argument sufficient to raise inference of discrimination although not accompanied by other evidence]; cf. People v Guardino, 62 AD3d 544, 545  ["While a purely numerical argument may give rise to a prima facie showing of discrimination," the numerical argument that four of six black female prospective jurors had been stricken by the prosecutor did not warrant the finding of a prima facie case). Accordingly, we remand this matter for a Batson hearing for the People to articulate neutral explanations for the exercise of their peremptory challenges and for the court to determine whether the proffered reasons are pretextual. All concur except Gonzalez, P.J. and Friedman, J. who dissent by Gonzalez, P.J. in a memorandum as follows: GONZALEZ, J. (dissenting)
I would conclude that the court properly denied defendant's Batson challenge. It is unclear from both the minutes of the voir dire and defendant's appellate brief exactly what cognizable group or groups were the subject of defendant's Batson application. In any event, with regard to any type of unlawful discrimination in the exercise of peremptory challenges by the prosecutor, the defense did not meet its initial burden of establishing an exercise of peremptory challenges in a manner suggesting either gender- or race-based discrimination (see Batson v Kentucky, 476 US 79, 96-98 ). In the first round of jury selection, 16 prospective jurors were empaneled. Two were disqualified by the court. Nine of the remaining 14 individuals were men, and five were women. The record does not indicate the racial composition of the venire. Each side had a total of 15 peremptory challenges, and the People used five in the first round, striking five of the nine men. Two of these men were African-American; one was Hispanic. The defense also used five challenges in the first round, striking three men and two women of unknown race.
After the People exercised their last peremptory strike, defense counsel stated: "Your honor, I'm going to raise a Batson challenge at this point in time. Prosecution has challenged Prospective Juror Number One ... male African American.".... [T]he fourth challenge was for a Hispanic male... And now they are challenging another African American male."In other words your Honor, the pattern that I see is the prosecution is discriminatorily using their challenges to exclude men of a minority class, both Hispanic and  African American." Defense counsel also faulted the prosecution for striking a disproportionate number of men, concluding that "they are excluding all the men and we're getting left with an all female jury." The court noted that the People had not challenged two minority males who were in the venire. Defense counsel then stated that the People's challenges were "all male. They haven't challenged a single female. They're all male. And 50 percent are directed against minority males. My client is African American male. We would like a fair jury." Finding no discernable pattern of discrimination, the court denied defendant's Batson claim, over a defense objection.
The court then empaneled the second venire, and the prosecutor exercised a peremptory challenge against an African- American woman. Defense counsel stated:
"Your honor, I raise the Batson issue again. Another African American, this time female, has been challenged for no apparent neutral reason."
THE COURT: Last time it was men."
[Defense Counsel]: Minority men. This time, minority female. Used their challenge in a racial manner to exclude -
"THE COURT: I don't believe there is a pattern of racial challenge. Denied."
Defense counsel did not object.
In total, the People used seven peremptory challenges. Five of the seven challenges were against men. Two of these men were African-American and one was Hispanic. One of the two women challenged by the People was African-American. The two panels consisted of 13 men and 14 women. The racial composition of the panels is unclear. The ...