

People v Frazier (2015 NY Slip Op 00973)





People v Frazier


2015 NY Slip Op 00973


Decided on February 5, 2015


Appellate Division, First Department


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.



Decided on February 5, 2015

Acosta, J.P., Renwick, Feinman, Clark, Kapnick, JJ.


14158 267/11 14157

[*1] The People of the State of New York, Respondent,
vRakeem Frazier, Defendant-Appellant.The People of the State of New York Respondent, -against-Joshua Moody, Defendant-Appellant.


Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Jones Day, New York (Joshua A. Weiner of counsel), for Rakeem Frazier, appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Nicholas Schumann-Ortega of counsel), for Joshua Moody, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Appeals from judgments, Supreme Court, New York County (Ruth Pickholz, J.), rendered September 13, 2011 and September 15, 2011, convicting defendants, after a jury trial, of robbery in the first and second degrees and two counts of criminal possession of stolen property in the fourth degree, and sentencing each defendant to an aggregate term of 10 years, held in abeyance, and the matters remanded for further proceedings pursuant to Batson v Kentucky  (476 US 79 [1986]).
In determining defendants' Batson  application, the court did not follow the standard protocols, and it prematurely terminated the proceeding. Although the court did not make a specific ruling that defendants satisfied step one of Batson  (prima facie case of discrimination), once it ordered the prosecutor to provide the reasons for his peremptory challenges to two of the six panelists who were the subject of defendants' application, it should have required the prosecutor to articulate his reasons for striking the remaining four panelists, as defendants specifically requested. The court also improperly denied the defense an opportunity to show that the prosecutor's proffered race-neutral reasons for striking the panelists were pretextual (see People v Smocum , 99 NY2d 418, 423 [2003]). Contrary to the People's assertion, these errors [*2]were preserved for our review.
Accordingly, we remand for further Batson  proceedings. This is the appropriate remedy under the circumstances presented (see e.g . People v Payne , 88 NY2d 172, 186-187 [1996]; People v Hawthorne , 80 NY2d 873, 874 [1992]), and we reject defendants' arguments that they have already established their entitlement to new trials.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 5, 2015
CLERK


