        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

977
KA 12-02072
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DERICK MALLORY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 17, 2012. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree and robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, robbery in the first degree (Penal Law §
160.15 [4]), defendant contends that Supreme Court erred in permitting
the prosecutor to exercise peremptory challenges to exclude two black
prospective jurors. We agree. Pursuant to Batson and its progeny,
“the party claiming discriminatory use of peremptories must first make
out a prima facie case of purposeful discrimination by showing that
the facts and circumstances of the voir dire raise an inference that
the other party excused one or more [prospective] jurors for an
impermissible reason . . . Once a prima facie showing of
discrimination is made, the nonmovant must come forward with a
race-neutral explanation for each challenged peremptory—step two . . .
The third step of the Batson inquiry requires the trial court to make
an ultimate determination on the issue of discriminatory intent based
on all of the facts and circumstances presented” (People v Smocum, 99
NY2d 418, 421-422; see People v James, 99 NY2d 264, 270-271).

     As the People correctly concede, because the court asked the
prosecutor to place his race-neutral reasons for challenging the two
prospective jurors on the record, the sufficiency of defendant’s prima
facie showing under step one of the Batson analysis is moot (see
People v Hecker, 15 NY3d 625, 652; People v Baxter, 108 AD3d 1158,
1159). With respect to step two of the analysis, we conclude that the
People failed to meet their burden of setting forth a “race-neutral
                                 -2-                           977
                                                         KA 12-02072

reason” for striking the challenged prospective jurors (Hecker, 15
NY3d at 656; see Batson v Kentucky, 476 US 79, 98; People v Duncan,
177 AD2d 187, 193-195, lv denied 79 NY2d 1048). “A race-neutral
reason naturally ‘means an explanation based on something other than
the race of the [prospective] juror’ ” (Hecker, 15 NY3d at 655,
quoting Hernandez v New York, 500 US 352, 360), and must be “related
to the particular case to be tried” (Batson, 476 US at 98; see Duncan,
177 AD2d at 193). Although the burden on the nonmoving party at this
stage of the analysis is relatively minimal, “[a] prosecutor’s
explanation may not be sustained where discriminatory intent is
inherent in the explanation” (Splunge v Clark, 960 F2d 705, 709; see
People v Allen, 86 NY2d 101, 110).

     Here, the People excluded the two prospective jurors at issue
solely based upon their answers to a race-based question, i.e.,
whether they believed that police officers “unfairly target members of
the minority community” (see Splunge, 960 F2d at 707-708; Turnbull v
State of Florida, 959 So 2d 275, 276-277, review denied 969 So 2d
1015). Notably, that question was unrelated to the facts of this
case, which does not involve any allegation of racial profiling (see
Batson, 476 US at 98; Turnbull, 959 So 2d at 277; see also People v
Pierrot, 289 AD2d 511, 512). We are unpersuaded by the People’s
assertion that the question was “designed to ensure that the jurors
would not automatically accept or reject police testimony.” “[T]here
are many perfectly acceptable questions that attorneys may ask to
determine the prospective jurors’ feelings about police officers”
(Turnbull, 959 So 2d at 277) and, here, both the court and the
prosecutor asked numerous race-neutral questions intended to ensure
that the prospective jurors would fairly assess the testimony of
police witnesses. Moreover, the prosecutor directed the objectionable
question only to the black prospective jurors and not to their white
counterparts (see Miller-El v Dretke, 545 US 231, 261; cf. United
States ex rel. Flores v Page, 1998 WL 42279, *8-9 [ND Ill]). Although
the prosecutor initially addressed the question to the entire panel,
he singled out the three black prospective jurors for individual
questioning when no one responded to his group question. The
prosecutor did not follow up with any of the white prospective jurors
(see Miller-El, 545 US at 256, 261; cf. United States v Steele, 298
F3d 906, 913-914, cert denied 537 US 1096). In addition, the
prosecutor explicitly referenced race in explaining his reasons for
challenging one of the prospective jurors. The first prospective
juror responded to the prosecutor’s question by stating her belief
that “[s]ometimes” police officers unfairly target minorities. The
prosecutor told the court that the prospective juror was not “a
suitable juror for this case” because “she believes that police
sometimes single out minorities and I have Caucasian police officers
that are going to be taking the stand.”

     Even assuming, arguendo, that the People’s proffered explanation
for excluding the two prospective jurors withstands scrutiny under
step two of the Batson analysis, we conclude that defendant met his
ultimate burden of establishing that the explanation was a pretext for
racial discrimination (see Batson, 476 US at 98; Hecker, 15 NY3d at
                                 -3-                           977
                                                         KA 12-02072

634-635; Allen, 86 NY2d at 104). We therefore reverse the judgment of
conviction and grant a new trial (see People v Wilmot, 34 AD3d 1225,
1226, lv denied 8 NY3d 886).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
In view of our determination with respect to the Batson issue, we do
not address defendant’s remaining contentions.




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
