Argued-June 12, 2017
Louis Cohen, Kew Gardens, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, William H. Branigan, and
Josette Simmons McGhee of counsel), for respondent.
C. DILLON, J.P. SHERI S. ROMAN ROBERT J. MILLER HECTOR D.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Latella, J.), rendered November 9, 2015, convicting
him of criminal possession of a controlled substance in the
first degree and criminal possession of a controlled
substance in the third degree, upon a jury verdict, and
that the judgment is reversed, on the law and the facts, and
a new trial is ordered.
defendant contends that the Supreme Court erred in granting
the prosecution's peremptory challenges to two
prospective black jurors because the prosecution's
race-neutral explanations for challenging those potential
jurors were pretextual (see Batson v. Kentucky, 476
U.S. 79; People v. Kern, 75 N.Y.2d 638). During jury
selection, the defendant made an application to the court
pursuant to Batson v. Kentucky (476 U.S. 79),
arguing that the prosecution was exercising its peremptory
challenges in a discriminatory manner against prospective
black jurors. The prosecutor proffered an explanation for
challenging one of the prospective black jurors at issue, No.
15, citing certain facial expressions made by that
prospective juror which led him to believe that the
prospective juror would "be more inclined to disbelieve
police officers." The prosecutor also proffered an
explanation for challenging two of the other prospective
black jurors at issue, Nos. 2 and 8, stating that those
potential jurors had failed to give satisfactory responses to
certain hypothetical questions posed during voir dire. In
response, defense counsel argued, among other things, that
other prospective jurors who were not black had answered the
subject hypothetical questions in the same way that
prospective jurors Nos. 2 and 8 had answered, and that the
prosecution had not sought to challenge those prospective
Supreme Court determined that the prosecutor's
explanation for challenging prospective juror No. 15 was
pretextual, and seated her as a juror. However, the court
determined that the prosecutor's explanations for
challenging prospective jurors Nos. 2 and 8 were not
pretextual, and denied the defendant's application with
respect to those two prospective jurors.
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 Jones,
139 A.D.3d 878, 879; People v. Carillo, 9 A.D.3d
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 A.D.3d at
334; see People v. Smocum, 99 N.Y.2d at 421-422;
People v. Jones, 139 A.D.3d at 879).
the record demonstrates that the race-neutral reasons for
challenging prospective jurors Nos. 2 and 8 were not applied
equally to exclude other prospective jurors who were not
black, even though those other jurors had answered the
subject hypothetical questions in the same way that
prospective jurors Nos. 2 and 8 had answered. Although the
uneven application of race-neutral factors does not always
indicate pretext where the prosecution can articulate other
legitimate reasons to justify the uneven use of its
challenges (see People v. Allen, 86N.Y.2d 101, 110),
the prosecution here failed to do so. Under the
circumstances, we conclude that the nonracial bases advanced
by the prosecutor for challenging prospective jurors Nos. 2
and 8 were pretextual (see People v. Fabregas, 130
A.D.3d 939, 942; People v. Bell, 126 A.D.3d 718,
720; People v. Hall, 64 A.D.3d 665, 666; People
v Morrison, 220 A.D.2d 694, 695; see also People v.
Hurdle, 99 A.D.3d 943, 944). Accordingly, the defendant
is entitled to a new trial (see People v. McIndoe,
277 A.D.2d 252).
there must be a new trial, we reach the defendant's
contention that the Supreme Court erred in admitting evidence
that the police found $2, 120 in cash in his possession when
he was arrested. This contention is without merit. Since the
defendant was charged with criminal possession of a
controlled substance in the third degree under Penal Law
§ 220.16(1), which requires proof of the intent to sell,
the court correctly found that the evidence regarding the
defendant's possession of the $2, 120 in cash was
relevant (see People v. Whaley, 70 A.D.3d 570, 571;
People v. Leak, 66 A.D.3d 403, 404; People v.
Rodriguez, 233 A.D.2d 409, 410; People v.
Strunkey, 221 A.D.2d 387; People v. Boomer, 221
A.D.2d 351, 352; People v. Charles, 212 A.D.2d 541,
541-542; People v. Woodson, 198 A.D.2d 535).
as the defendant contends, and the People properly concede,
he was incorrectly sentenced as a second felony offender. An
out-of-state conviction may be used as a predicate felony
conviction where its elements are equivalent to those of a
New York felony (see Penal Law §
70.06[b][i]; People v. Jurgins,26 N.Y.3d 607,
613; People v. Yusuf,19 N.Y.3d 314, 321; People
v. Muniz,74 N.Y.2d 464, 467-468; People v.
Gonzalez,61 N.Y.2d 586, 590). The elements of
Connecticut General Statute § 53-21(a)(2), under which
the defendant was convicted, are not equivalent to those of
any New York felony. However, because a new trial is
required, we need not consider whether the sentence ...