People v. Durant

250 A.D.2d 698, 672 N.Y.S.2d 433, 1998 N.Y. App. Div. LEXIS 5581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1998
• Status: Published

Opinions

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered January 5, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

During the second round of voir dire, the defense counsel raised a Batson claim (see, Batson v Kentucky, 476 US 79), arguing that the prosecutor exercised two peremptory challenges to exclude potential black jurors because of their race. Although the prosecutor objected that the defense counsel failed to make a prima facie showing that she had exercised her challenges in a racially-discriminatory manner, the trial court required the prosecutor to provide race-neutral reasons-for her challenges, and made a preliminary determination to disallow one of the strikes. However, the prosecutor continued to maintain that no prima facie case had been established, and after reviewing relevant authority during a recess, the trial court agreed, and permitted the prosecutor’s challenge to stand.

Contrary to the defendant’s contention, the trial court did not err in allowing the prosecution’s challenge to the prospective juror. A party need give no reason at all for the exercise of a peremptory challenge (see, People v Allen, 86 NY2d 101, 109), and thus step one of the Batson inquiry requires the defendant to establish a prima facie case by showing that “there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race” (People v Childress, 81 NY2d 263, 266). At bar, the defendant concededly failed to make such a prima facie showing, and thus the burden of overcoming the inference of purposeful discrimination never shifted to the People (see, Batson v Kentucky, supra, at 96-97; People v Allen, supra). The fact that the trial court erroneously made a preliminary ruling that a prima facie case had been established, and ruled on the issue of whether the challenges to two potential jurors had been proper, did not render moot the issue of whether the defendant carried his initial burden of proof.

It is also significant to note that following its realization that no “pattern of purposeful exclusion sufficient to raise an inference of discrimination” had been demonstrated (People v Steele, 79 NY2d 317, 325), the trial court never made a final ruling on the issue of whether the defendant had sustained his ultimate burden of proving intentional discrimination under the third prong of the Batson test. Since the issue of whether the prosecutor intended to discriminate is a question of fact which must be resolved in the first instance by the trial court (see, People v Allen, supra, at 110), the court’s preliminary, third-step finding that the prosecutor had used one of her strikes improperly did not prohibit it from reconsidering its ruling upon a determination that no facts and circumstances sufficient to raise an inference of discrimination had been shown. In sum, as clearly no third-step determination was required, none was in fact ever rendered.

Furthermore, the trial court did not err in closing the courtroom to the public during the testimony of the two undercover narcotics officers. The undercover officers testified at a Hinton hearing (see, People v Hinton, 31 NY2d 71, cert denied 410 US 911), that they continued to work in the immediate vicinity of the defendant’s arrest; that they had previously been threatened by other drug suspects; that they had seen the targets of other drug investigations in the courthouse; and that they took measures to prevent their identity as undercover officers from being revealed while they were in the courthouse. This testimony established a sufficient link between the officers’ concern for their safety and their open-court testimony so as to warrant closure (see, People v Ramos, 235 AD2d 556, affd 90 NY2d 490, cert denied sub nom. Ayala v New York, 522 US 1002; People v Martinez, 82 NY2d 436; People v Pastrana, 237 AD2d 628). In addition, the trial court did not improvidently exercise its discretion in rejecting the defendant’s proposed alternative to closure during the testimony of the two officers. Although the trial court did not explicitly state its reasons for rejecting the defendant’s proposal, it can be implied from the trial court’s findings that it accepted the People’s argument that the proposed alternative would not fully protect the officers’ safety (see, People v Ayala, 90 NY2d 490, cert denied 522 US 1002 supra).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Rosenblatt, J. P., > Krausman and Florio, JJ., concur.