OPINION OF THE COURT
Manzanet-Daniels, J.
The issue in this case is whether the prosecution exercised its peremptory challenges in a discriminatory manner when it [25]*25struck all African American males from a panel of prospective jurors.
During the first round of voir dire, nine jurors were selected, including a woman who stated that “sometimes the police are doing their job and sometimes they are not. They could be forceful at times if they feel threatened. They do what they have to do.” The first panel did not include any black men.
During the second round, three jurors and two alternates were seated, including a woman who stated she had “seen things go both ways” with the police. An African American male, Smalls, was struck for cause after telling the court that he had been the victim of police harassment. Smalls admitted that he wasn’t sure he could “take police testimony at face value and possibly be impartial to it.”
Three African American males remained on the second panel of jurors: Hewitt, Prosser and Lortey. Hewitt was unemployed with no children. He stated that in high school he would usually take the lead in group projects. He agreed that he had a strong personality and stated that he would stick to his guns if he really believed in something. Hewitt had been stopped and frisked “a couple of times,” but denied that it had “sour[ed]” him on the police department, stating, “[I]t’s just the breaks sometimes.”
Prosser, an elevator mechanic, had no children and played basketball on the weekends. He had relatives in law enforcement, including a father in federal law enforcement and an uncle in internal affairs. When asked whether having family members in law enforcement would “color” his view of the witnesses in the case, he stated, “What they do doesn’t affect what I think.” He had no opinion as to whether a police officer would be more or less likely to twist the truth, while other prospective jurors pointedly referred to a police “brotherhood.”
Lortey was a utility worker for Con Edison and the father of a son.
An unnamed juror replied, “Yes,” when asked whether he had had a “[b]ad experience with cops,” stating that he had the “same experience” mentioned by Smalls, the juror excused for cause. When asked whether his experience would affect how he evaluated the testimony of the police officer in the case, the juror responded, “I don’t know . . . I’m not sure what it would trigger emotionally to impact my judgment.”
After inquiry was made of Hewitt regarding his encounters with the police, an unnamed juror stated, ‘You know, the stop [26]*26and frisk policy, that happens to me every day, five days out of the week,” but qualified that “that’s . . . [the police] doing their job.”
At the end of round two, the prosecutor exercised peremptory challenges to exclude Prosser, Hewitt and Lortey. Defense counsel requested that the prosecutor give a race-neutral reason for striking every black male juror on the panel, as per Batson v Kentucky (476 US 79 [1986]) (see People v Payne, 88 NY2d 172, 181 [1996]). The prosecutor explained that both Hewitt and Prosser1 had been harassed by police officers and stated that he feared it would color their view of Officer Hobson’s testimony.
The court asked whether counsel was “saying it’s a gender bias, which is not a color bias.” Defense counsel refused to choose, framing the challenge as “the interaction of both race and gender.” The court asked if there was any law on the issue. Defense counsel did not know any “off the top” of his head, but asked for an opportunity to brief the court on the relevant case law.
The court thereupon stated, “[B]e that as it may, I’ve listened to your explanations. I find them to be absolutely race neutral.” The court stated that it would have granted a for-cause challenge as to Lortey. The court noted that Hewitt had experiences being harassed. At the mention of Prosser’s name, the prosecutor immediately interjected, stating that he had noticed Prosser “making faces” throughout the proceedings. The court stated, “You’re covered. Denied.”
When it appeared that it might be necessary to convene a third panel of prospective jurors in order to select an alternate, the court inquired whether the defense and prosecution might agree on an alternate from the second panel. Defense counsel argued for Hewitt, noting that he did not appear to be “stressed out” by his experiences and had stated that he would “stick to the letter of the law.” He agreed that Lortey and Prosser had demonstrated that they “didn’t want to be [t]here,” but did not in any way allude to negative interactions either had had with the police. The parties settled on a female juror as an alternate, ending the process of jury selection.
The following day, before opening statements, defense counsel attempted to renew his Batson challenge. The court [27]*27stated, “The record is done. What else?” Defense counsel reminded the court that it had asked for case law on the subject, and the court replied, “Fine. You got your appeal. Fine. Bring it up on appeal. I’m not changing it now.” Defense counsel asked to make a written submission, to which the court replied, “Sure,” and the parties continued on to other pretrial matters.
Before resting, defense counsel moved for a mistrial based on the Batson challenge.
Defense counsel preserved the issue that a prima facie case of discrimination had been established by making the argument during jury selection and filing a written memorandum with the court (see C.PL 470.05 [2]). He also objected at subsequent stages of the Batson inquiry. However, as evidenced from the colloquy, the judge cut the defense attorney off in a peremptory manner — even stating at one point, “Fine. Bring it up on appeal. I’m not changing it now” — preventing counsel from explicating his arguments. We would in any event reach the issue in the interest of justice (see CPL 470.15 [3] [c]; [6]).
The dissent asserts that we have “consistently declined” to exercise interest of justice review in a Batson case. We would decline to so circumscribe a power that is unique to the Appellate Division. The result would be to deny a defendant the opportunity to have a fair jury seated merely because his or her counsel misapprehends the Batson three-step inquiry. It should be noted that when we have declined to exercise interest of justice jurisdiction in a Batson case we have almost invariably gone on to state, as an alternate holding, that the Batson claim has no merit. Further, there is precedent to exercise interest of justice jurisdiction to entertain a Batson claim (see People v Harris, 151 AD2d 961 [4th Dept 1989]).
As a matter of federal and state constitutional law, neither the prosecution nor the defense may exercise peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79 [1986]; People v Payne, 88 NY2d 172, 181 [1996]). When a Batson claim is raised, the trial court must engage in a three-step process. First, the opponent of the peremptory challenge must make a prima facie showing that the strike related to the stricken juror’s protected class. The burden then shifts to the proponent of the strike to overcome the inference of intentional discrimination by giving a facially-neutral explanation for the peremptory strike.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Manzanet-Daniels, J.
The issue in this case is whether the prosecution exercised its peremptory challenges in a discriminatory manner when it [25]*25struck all African American males from a panel of prospective jurors.
During the first round of voir dire, nine jurors were selected, including a woman who stated that “sometimes the police are doing their job and sometimes they are not. They could be forceful at times if they feel threatened. They do what they have to do.” The first panel did not include any black men.
During the second round, three jurors and two alternates were seated, including a woman who stated she had “seen things go both ways” with the police. An African American male, Smalls, was struck for cause after telling the court that he had been the victim of police harassment. Smalls admitted that he wasn’t sure he could “take police testimony at face value and possibly be impartial to it.”
Three African American males remained on the second panel of jurors: Hewitt, Prosser and Lortey. Hewitt was unemployed with no children. He stated that in high school he would usually take the lead in group projects. He agreed that he had a strong personality and stated that he would stick to his guns if he really believed in something. Hewitt had been stopped and frisked “a couple of times,” but denied that it had “sour[ed]” him on the police department, stating, “[I]t’s just the breaks sometimes.”
Prosser, an elevator mechanic, had no children and played basketball on the weekends. He had relatives in law enforcement, including a father in federal law enforcement and an uncle in internal affairs. When asked whether having family members in law enforcement would “color” his view of the witnesses in the case, he stated, “What they do doesn’t affect what I think.” He had no opinion as to whether a police officer would be more or less likely to twist the truth, while other prospective jurors pointedly referred to a police “brotherhood.”
Lortey was a utility worker for Con Edison and the father of a son.
An unnamed juror replied, “Yes,” when asked whether he had had a “[b]ad experience with cops,” stating that he had the “same experience” mentioned by Smalls, the juror excused for cause. When asked whether his experience would affect how he evaluated the testimony of the police officer in the case, the juror responded, “I don’t know . . . I’m not sure what it would trigger emotionally to impact my judgment.”
After inquiry was made of Hewitt regarding his encounters with the police, an unnamed juror stated, ‘You know, the stop [26]*26and frisk policy, that happens to me every day, five days out of the week,” but qualified that “that’s . . . [the police] doing their job.”
At the end of round two, the prosecutor exercised peremptory challenges to exclude Prosser, Hewitt and Lortey. Defense counsel requested that the prosecutor give a race-neutral reason for striking every black male juror on the panel, as per Batson v Kentucky (476 US 79 [1986]) (see People v Payne, 88 NY2d 172, 181 [1996]). The prosecutor explained that both Hewitt and Prosser1 had been harassed by police officers and stated that he feared it would color their view of Officer Hobson’s testimony.
The court asked whether counsel was “saying it’s a gender bias, which is not a color bias.” Defense counsel refused to choose, framing the challenge as “the interaction of both race and gender.” The court asked if there was any law on the issue. Defense counsel did not know any “off the top” of his head, but asked for an opportunity to brief the court on the relevant case law.
The court thereupon stated, “[B]e that as it may, I’ve listened to your explanations. I find them to be absolutely race neutral.” The court stated that it would have granted a for-cause challenge as to Lortey. The court noted that Hewitt had experiences being harassed. At the mention of Prosser’s name, the prosecutor immediately interjected, stating that he had noticed Prosser “making faces” throughout the proceedings. The court stated, “You’re covered. Denied.”
When it appeared that it might be necessary to convene a third panel of prospective jurors in order to select an alternate, the court inquired whether the defense and prosecution might agree on an alternate from the second panel. Defense counsel argued for Hewitt, noting that he did not appear to be “stressed out” by his experiences and had stated that he would “stick to the letter of the law.” He agreed that Lortey and Prosser had demonstrated that they “didn’t want to be [t]here,” but did not in any way allude to negative interactions either had had with the police. The parties settled on a female juror as an alternate, ending the process of jury selection.
The following day, before opening statements, defense counsel attempted to renew his Batson challenge. The court [27]*27stated, “The record is done. What else?” Defense counsel reminded the court that it had asked for case law on the subject, and the court replied, “Fine. You got your appeal. Fine. Bring it up on appeal. I’m not changing it now.” Defense counsel asked to make a written submission, to which the court replied, “Sure,” and the parties continued on to other pretrial matters.
Before resting, defense counsel moved for a mistrial based on the Batson challenge.
Defense counsel preserved the issue that a prima facie case of discrimination had been established by making the argument during jury selection and filing a written memorandum with the court (see C.PL 470.05 [2]). He also objected at subsequent stages of the Batson inquiry. However, as evidenced from the colloquy, the judge cut the defense attorney off in a peremptory manner — even stating at one point, “Fine. Bring it up on appeal. I’m not changing it now” — preventing counsel from explicating his arguments. We would in any event reach the issue in the interest of justice (see CPL 470.15 [3] [c]; [6]).
The dissent asserts that we have “consistently declined” to exercise interest of justice review in a Batson case. We would decline to so circumscribe a power that is unique to the Appellate Division. The result would be to deny a defendant the opportunity to have a fair jury seated merely because his or her counsel misapprehends the Batson three-step inquiry. It should be noted that when we have declined to exercise interest of justice jurisdiction in a Batson case we have almost invariably gone on to state, as an alternate holding, that the Batson claim has no merit. Further, there is precedent to exercise interest of justice jurisdiction to entertain a Batson claim (see People v Harris, 151 AD2d 961 [4th Dept 1989]).
As a matter of federal and state constitutional law, neither the prosecution nor the defense may exercise peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79 [1986]; People v Payne, 88 NY2d 172, 181 [1996]). When a Batson claim is raised, the trial court must engage in a three-step process. First, the opponent of the peremptory challenge must make a prima facie showing that the strike related to the stricken juror’s protected class. The burden then shifts to the proponent of the strike to overcome the inference of intentional discrimination by giving a facially-neutral explanation for the peremptory strike. At step three, the burden shifts back to the moving party to “persuad[e] the court that [the proferred] reasons are merely a pretext for intentional discrimination” [28]*28(People v Hecker, 15 NY3d 625, 656 [2010], cert denied 563 US 947 [2011]).
Defense counsel made a prima facie showing of discrimination requiring the prosecutor to give racially-neutral reasons for exercising peremptory challenges against all of the eligible black male jurors.2
It is necessary to discuss, at this stage, whether black males are a cognizable group for Batson purposes. Batson of course prohibits the striking of jurors on the basis of race. The Batson rationale was extended to gender in J. E. B. v Alabama ex rel. T B. (511 US 127, 130-131 [1994]). The Court of Appeals instructs us that “[e]limination of a potential juror because of generalizations based on race, gender or other status that implicates equal protection concerns is an abuse of peremptory strikes” (People v Allen, 86 NY2d 101, 108 [1995]).
Although the Supreme Court has not yet ruled on whether Batson extends to combined race-gender groups, state courts examining the issue under their own constitutions have generally recognized an intersectional status based on race and gender as a cognizable group for Batson purposes (see e.g. People v Guardino, 62 AD3d 544, 545-546 [1st Dept 2009] [black females], affd on other grounds sub nom. People v Hecker, 15 NY3d 625 [2010], cert denied 563 US 947 [2011]; People v Garcia, 217 AD2d 119, 122 [2d Dept 1995] [black females]; People v Jackson, 213 AD2d 335 [1st Dept 1995] [black females], appeal dismissed 86 NY2d 860 [1995]; Commonwealth v Jordan, 439 Mass 47, 62, 785 NE2d 368, 380 [2003] [white males]; People v Motton, 39 Cal 3d 596, 605-606, 704 P2d 176, 181 [1985] [black females]).
In Guardino, the dissenting justice reasoned that an “intersectional status” of race and sex (in that case, black women) should be treated in the same manner as race and gender for Batson purposes (62 AD3d at 548 [Catterson, J., dissenting]). It would indeed be incongruous to consider race and gender as cognizable statuses, but not a combined race and gender status.
The wholesale exclusion of black men from the jury gives rise to a mandatory inference of discrimination at the first step [29]*29of the Batson inquiry (compare Hecker, 15 NY3d at 653~654).3 The prosecutor used peremptory strikes to eliminate black male jurors while not excluding others who expressed skepticism about the credibility of police officers, such as the woman on the first panel who stated that “sometimes the police [were] not [doing their job],” and “could be forceful . . . if . . . threatened,” and the woman on the second panel who said she’d “seen things go both ways” with the police. Prosser had close relatives in law enforcement, a factor which would generally predispose him to the prosecution, yet he too was eliminated.
The prosecutor’s putatively neutral explanations cannot be assessed and resolved as a matter of law, given the ambiguities and lack of clarity in the record. The explanations could have been exposed as a pretext for intentional discrimination had the court conducted a proper Batson inquiry. Only two jurors claimed to have been harassed by the police: Smalls, the juror who had been struck for cause, and another unnamed juror who may or may not have been African American. Hewitt stated only that he had been stopped and frisked “a couple of times,” but pointedly declined to accept the prosecutor’s suggestion that it had left a bad “taste” in his mouth or “sour[ed]” him on the police. He stated, “[I]t is what it is,” and “Hit’s just the breaks sometimes.” Prosser had relatives in law enforcement, including an uncle in internal affairs and a father who worked in the federal system, a factor that would tend to dispose him favorably to the prosecution. There is no record concerning any alleged negative encounters between Prosser or Lortey and the police. As even the prosecutor recognizes, on this incomplete record, there is no way of definitively attributing the comments of unnamed jurors to either Prosser or Lortey. The dissent’s arguments at this stage presuppose that the comments of the unnamed jurors may be definitely assigned to Prosser. Even the dissent is compelled to admit that the prosecutor failed to give any explanation whatsoever for the challenge as to Lortey.
We do not subscribe to the People’s reasoning that the judge’s comments (to the effect that he would not expect the prosecu[30]*30tor to select Lortey or Prosser and that he would have struck Lortey for cause if asked) serve as record-based proof that the prosecutor’s challenge was not merely pretextual. It is “the trial courts’ responsibility to make a sufficient record to allow for meaningful appellate review that insures and reflects that each party fulfills its burden and has an opportunity for input” (People v Payne, 88 NY2d at 183). The record is pointedly deficient as to Lortey, as to whom nonpretexual explanations were not even offered, and Prosser, as to whom no record exists to support the assertion that he had been the victim of police harassment.
The court failed to follow the three-step Batson protocol. Although the prosecutor furnished some explanations for the strikes, he gave them only as to Hewitt and Prosser, not Lortey. Even if those explanations were accepted as facially neutral, the court was obliged to continue on to step three and afford defense counsel the opportunity to show that the prosecutor’s stated reasons for the strikes were pretextual. Defense counsel was never given the opportunity to argue that the prosecutor’s explanations were a pretext for discrimination. The court improperly combined steps and deviated from the Batson protocol, which cannot be considered harmless or nonprejudicial to defendant (see People v Payne, 88 NY2d at 186 [trial court erred by “premature and summary compaction of steps two and three” and thereby “skewed and squeezed the process into a functional bypass of the key, final protocol we have put in place”]).
Accordingly, the appeal from the judgment of the Supreme Court, Bronx County (Thomas A. Breslin, J.), rendered May 17, 2013, convicting defendant, after a jury trial, of assault in the second and third degrees and resisting arrest, and sentencing her, as a second felony offender, to an aggregate term of four years, should be held in abeyance and the matter remanded to Supreme Court for further proceedings as are necessary to satisfy the requirements of Batson v Kentucky (476 US 79 [1986]).