The opinion of the court was delivered by: Ciparick, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
New York Civil Liberties Union et al., amici curiae.
In Batson v Kentucky, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used by a party to exclude potential jurors on the basis of race (see 476 US 79, 94-98 ). These four appeals, once again, center on the application of this now-familiar three-step Batson protocol. At step one, "the moving party bears the burden of establishing a prima facie case of discrimination in the exercise of peremptory challenges" (People v Smocum, 99 NY2d 418, 420 ). Once a prima facie case of discrimination has been established, the burden shifts, at step two, to the nonmoving party to offer a facially neutral explanation for each suspect challenge (see Hernandez v New York, 500 US 352, 358-359 ; People v Allen, 86 NY2d 101, 104 ). At the third step, the burden shifts back to the moving party (see Smocum, 99 NY2d at 422; People v Payne, 88 NY2d 172, 183-184 ) to prove purposeful discrimination and "the trial court must determine whether the proffered reasons are pretextual" (Allen, 86 NY2d at 104).
With this framework in place, in People v Hecker, we are asked to resolve whether Supreme Court erred in concluding at step three that the reasons offered by defense counsel to exclude one Asian-American prospective juror were pretextual. In People v Guardino and People v Hollis, the issue presented is whether the defendants in those cases failed to meet their burden in establishing a step one prima facie case of purposeful racial discrimination. Finally, in People v Black, we are called upon to determine whether Supreme Court's step three acceptance of the race neutral reasons proffered by the People in peremptorily challenging three prospective jurors has record support.
A New York County grand jury indicted Hecker for one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 ), a class B felony, for allegedly selling three twists of crack cocaine to an undercover police officer.
Hecker proceeded to trial and jury selection commenced in June 2008. At the beginning of jury selection, Supreme Court advised the parties that they each would be given ten minutes to voir dire the prospective jurors following the court's preliminary examination, but that if either party desired more time to speak with the jurors they should seek permission from the court. Supreme Court's preliminary questions ostensibly consisted of two parts. The first part pertained to the prospective jurors' biographical information while the second part focused on the jurors' legal backgrounds, contact with the criminal justice system, and prior jury service. Supreme Court instructed the prospective jurors to familiarize themselves with the court's questionnaire and those selected from the venire for questioning would be asked to reference the question number and provide the pertinent information.
Jury selection took place over the course of three rounds. During the first round of jury selection, Supreme Court seated 18 panelists for questioning. The parties selected three of these panelists to serve as jurors. Of the remaining 15 panelists, Supreme Court excused five of them for cause while the parties each utilized five of their 15 peremptory challenges.*fn1
Defense counsel spoke to 12 of the 18 panelists on the first round. Out of the five panelists peremptorily challenged by defense counsel, she had not questioned three of them. Of these three, one of them had not been addressed by the People either.
In the second round of jury selection, Supreme Court similarly seated 18 prospective jurors and later excused four of them for cause. Two of the remaining 14 panelists seated during this round, Chan and Lee, both of Asian descent, are relevant to this appeal. The following colloquy, in response to the preliminary juror questionnaire, ensued between Chan and Supreme Court:
"[CHAN]: My name is [ ] Chan. I live with my husband in lower Manhattan [sic] and for over 16 years. Number four is my husband is working. I'm not.
"THE COURT: What type of work does your husband do?
"[CHAN]: My husband working a technician.
My education, I have a business administration in Associate Degree. Number six no. Number seven, yes.*fn2 Number eight, no. Number nine is no. Number ten is no. Number 11 is no. Number 12 is no. Number 13 and 14 is no.
When it was Lee's turn to answer Supreme Court's questionnaire, he responded narratively to the questions, noting that he was a first-year law student at New York University.
Once Supreme Court completed its preliminary questioning, the parties conducted their voir dire of the second round panelists. Defense counsel questioned only five of the 18 panelists. At the point in time defense counsel had questioned three of these panelists, Supreme Court advised her that she had "one minute left" to complete her voir dire. In her remaining time, defense counsel asked two panelists, including Lee, whether he would hold it against Hecker if he did not testify at trial. Lee responded to this line of questioning as follows:
"I understand it's his legal right. However, I have some trepidation on whether in the role as a juror I could draw the distinction between fact and law, especially given my legal training. I'm a free-thinking individual with an opinion of what the law is or ought to be. So I'm concerned that unconsciously whether that legal opinion might influence.
So, while I would consciously attempt to force myself from the recognition of what the law is, I think unconsciously" Supreme Court intervened at this juncture and the following colloquy between it and Lee occurred:
"THE COURT: I'm failing to understand what you are saying.
"[LEE]: I understand as a juror I'm only supposed to evaluate questions of fact. To me that means questions of credibility. So, if the defendant were not to testify, that would, to me, be some indicator of credibility. However, as a matter of law, the defendant need not self incriminate or testify against himself.
"THE COURT: That's a basic constitutional protection.
"THE COURT: . . . Are you saying you have some difficulty accepting the mandates of the United States Constitution which presumes any person accused of a crime of being innocent? "[LEE]: No, your Honor.
"THE COURT: Are you saying that you would not be able to, as a person who is aspiring to be an attorney before the bar, afford an individual that presumption and not follow the Court's direction that the People have the burden of proving a person accused of a crime beyond a reasonable doubt?
"[LEE]: No, your Honor, I'm not saying that. I'm saying, as an academic matter, I solely recognize that. And I will strive as humanly possible to draw that distinction. However, I have no control over whatever unconscious biases I develop.
"THE COURT: What sort of unconscious biases would you anticipate?
"[LEE]: Just as a matter, I would have some question as to why the defendant wouldn't want to testify.
"THE COURT: I'm certain as a law student you can imagine a host of reasons why a defendant might elect not to testify. The simplest of course is putting the People to their proof. He may not be particularly articulate and host of other reasons. The question is, can you, in your mind, as you said, as an intellectual exercise, put those thoughts out of your mind in doing the job that you would be sworn to do as a juror which is to decide the case on the facts, determine whether the People have proven the case beyond a reasonable doubt, as is their burden, without factoring into that equation the musings, if you will, that you have.
Can I have your assurance that you will do that?
After this lengthy colloquy, Supreme Court informed defense counsel that her allotted time to speak with the remaining prospective jurors had expired. Supreme Court then directed the parties to consider the qualifications of the first nine of the 18 prospective jurors questioned during this round. After the parties completed their for cause challenges as to the first nine jurors, the People and defense counsel each lodged two peremptory challenges. Defense counsel peremptorily challenged Chan, whom neither she nor the assistant district attorney had questioned.
The parties then evaluated the remaining nine panelists. Defense counsel challenged Lee for cause, reasoning that "despite [the court's] variety of questions which I think at a point put Mr. Lee in the position of almost an embarrassing position where he began to give answers that seemed to attempt to satisfy whether or not he could be fair and impartial . . . he made it clear that he could not really sit as a juror in this case . . ." Supreme Court denied the application. Later, defense counsel peremptorily struck three additional jurors, including Lee. In total, both the People and defense counsel used five of their remaining ten peremptory challenges during the second round of jury selection.
Defense counsel's choice to strike Lee prompted the People to make a reverse Batson challenge.*fn3 In doing so, the prosecutor highlighted the fact that defense counsel removed the only two Asian jurors questioned thus far. Defense counsel immediately interjected to explain her decision for challenging Lee. She pointed out the controversial nature of Lee's responses to her questions pertaining to Hecker's constitutional right not to testify at his own trial. She reminded Supreme Court of the lengthy colloquy that ensued between it and Lee and suggested that the intensive questioning by Supreme Court "embarrassed"
Lee, a law student, into giving answers that he could be fair and impartial. Under these circumstances, defense counsel maintained that, regardless of race, Lee was a "questionable juror for a defense attorney." After these remarks, defense counsel further stated, "I don't think that I have to go any further with respect to juror number one" (meaning Chan).
Supreme Court, finding a pattern of discrimination nonetheless, disagreed and asked defense counsel to articulate race neutral reasons for peremptorily striking Chan. Defense counsel offered the following explanation:
"I found her as a person extremely austere in her demeanor and her temperament. I felt that [ ] there was nothing about her personality or her lifestyle which indicated to me that she would not be the kind of individual who might be flexible in her thinking. It seemed to me that she --her husband, I think she said, was a business administrator, if I'm reading my notes correctly. But at the point where I eliminated her because of the brevity of our ability to really question everyone at great length, I was very selective in the short period that I had which was all of ten minutes to try to speak to as many of the 18 people as possible. And the short impression that I got of her based upon my questions, in fact, I don't even know if I questioned her, but based upon what answers she gave to anyone . . . I just got the feeling that I could not relate to somebody with her temperament."
The People did not respond to defense counsel nor did they specifically challenge this reason as pretextual and Supreme Court reserved its decision on the matter.
After a lunch recess, Supreme Court ruled on the People's reverse Batson application. While accepting the race neutral reasons offered by defense counsel for striking Lee, it concluded as to Chan that "the reasons articulated by counsel [were] pretextual in nature and, in point of fact, there exists no differentiation in my view between this juror's responses and that of any of the other jurors which were found acceptable by counselor." In granting the People's reverse Batson application as to Chan, Supreme Court further stated, "[t]he reasons as given . . . such as austere personality, lifestyle, lack of flexibility, are not conclusions which would flow from the answers given by this particular prospective juror."
Defense counsel protested Supreme Court's ruling and argued that no pattern of discrimination had been established since "we're speaking about one individual juror." She further contended that Supreme Court's ruling was erroneous in light of the way she exercised her other peremptory challenges during the first two rounds of jury selection. Defense counsel also renewed her argument that the limited time Supreme Court had allotted during this round of jury selection prevented her from speaking to most of the panelists. She proposed that, given the restricted time constraints of her voir dire, the court should allow her to question Chan further. Supreme Court did not reopen the voir dire as to Chan. Thus, at the completion of the second round, the parties agreed upon four more jurors and Supreme Court empaneled Chan over defense counsel's objection.
The jury selection process proceeded to a third round where Supreme Court seated 26 new panelists for questioning. The parties selected the remaining four jurors from this group. The eighth person seated during this round of jury selection was Choy, who spoke Chinese and whose husband was a police officer in lower Manhattan. She explained that she would be sympathetic to police testimony and would not be able to be fair and impartial. When defense counsel exercised a for cause challenge as to this juror, Supreme Court granted the application on consent of the People. Kazuko was the thirteenth person seated during this round of jury selection. During the preliminary questioning, he told Supreme Court and the parties that he received his bachelor's degree in Japan and that he coordinated tours for Japanese tourists in New York City. The parties chose Kazuko to serve as a juror in this case. Prior to Kazuko's selection, defense counsel exercised three additional peremptory challenges, all on individuals she had not questioned during her brief voir dire. Two of these three prospective jurors had likewise not been questioned by the People.
The parties designated three panelists to act as alternate jurors in this case. Alternate juror number two was Qu. During Supreme Court's preliminary questioning, he informed the parties that he earned his university degree in Beijing and that he currently is the host for a "culture for Chinese language" television and radio program.
The following day, before the People began calling their trial witnesses, Supreme Court presided over a Hinton hearing at which the undercover officer testified. Following the hearing, Supreme Court ordered the closure of the courtroom to the public during the undercover's testimony, reasoning that the officer "demonstrated a justifiable fear for his personal safety." Supreme Court also permitted the undercover to use his shield number as opposed to his name to identify himself at the hearing.
The jury convicted defendant of third degree criminal sale of a controlled substance. Supreme Court sentenced defendant to a determinate prison term of six years, followed by a two-year period of postrelease supervision.
The Appellate Division unanimously affirmed the judgment of conviction and sentence, concluding that "[t]he court properly granted the People's Batson application" (68 AD3d 429, 430 [1st Dept 2009]). The court further noted that "[c]counsel's failure to question the panelist was a significant indicator of pretext under the circumstances" (id.). In affirming the conviction, the court also held that closure of the courtroom during the undercover's testimony was proper (see id.).
A Judge of this Court granted defendant leave to appeal
(14 NY3d 801 ) and we now reverse.
A New York County grand jury returned a multiple-count indictment charging Guardino and others with Enterprise Corruption (Penal Law § 460.20  [a]), a class B felony, Combination in Restraint of Trade and Competition (General Business Law §§ 340 and 341), and several counts of both Bribe Receiving by a Labor Official (Penal Law § 180.25) and Grand Larceny in the Third Degree by Extortion (Penal Law § 155.35). From September 2001 to the date of the 2004 indictment, Guardino, a business agent for Local Union No. 8 of the United Union of Roofers, Waterproofers and Allied Workers ("Local 8"), allegedly approached a series of roofing contractors and extorted money from them. Before trial, four of Guardino's co-defendants and the Local 8 itself entered guilty pleas.
Guardino and his three remaining co-defendants proceeded to trial in October 2006. The jury selection process, given the complexity and expected two-month length of the trial, began with the preliminary screening of a large pool of prospective jurors. These prospective jurors received a detailed questionnaire, which they were instructed to complete. The parties reviewed these submissions and Supreme Court excused those ...