New York Court of Appeals Holds That Skin Color Is a Cognizable Class Under Batson Analysis

–by Robert Carpenter

Citation: People v. Bridgeforth, 2016 N.Y. Lexis 3859 (Dec. 22, 2016) (internal citations omitted).

Abstract: In a matter of first impression, the New York Court of Appeals held that skin color was a cognizable class for Batson based challenges to peremptory strikes.

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On December 22, 2016, the New York Court of Appeals held that a trial court had committed reversible error by not seating a juror. In so doing, the Court established skin color as a classification upon which a challenge to peremptory strikes could be successfully based.

The defendant in the case was charged with multiple counts of robbery. During voir dire, the prosecutor used peremptory challenges to exclude multiple potential jurors. Defense counsel alleged that the prosecutor lacked valid reasons for the strikes, other than the fact that all those excluded were “dark-skinned women.” The record indicates that the excluded group included African-American women, Guyanese women, and “a dark complexioned Indian-American woman.” The prosecutor immediately supplied reasons for the challenges for all those excluded except for the Indian-American woman. Even with no reason for the challenge, the Indian-American woman was not seated as a juror.

The Court began by reviewing how New York analyzes challenges to peremptory strikes. The Court noted that New York has adopted the framework used by the Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986). The Batson framework requires the movant to establish a prima facie case of peremptory strikes being used to discriminate. After that the non-moving party must put forth a non-discriminatory reason for the strike. Finally, the Court decides whether the stated reason was legitimate or a pretext for discrimination.

The Court then considered whether skin color implicated equal protection concerns. For guidance, the Court looked to the New York Constitution’s equal protection clause, which prevents discrimination against “race, color, creed or religion.” The Court concluded that the distinction between “race” and “color” meant that the two concepts were unique. The Court also cited several academic articles that had found the existence of “colorism.” With all of these factors in mind, the Court found that Batson should be extended to include challenges based on skin color.

After finding skin color to be a cognizable classification for Batson, the Court noted that this decision did not conflict with past decisions that found Batson challenges could not be based on the exclusion of minorities. The Court stated that skin color required only a narrow showing while minority status could include a varied group of people.

In applying the new Batson classification to the case, the Court first held that the trial court did not reach an ultimate conclusion on the prima facie case of discrimination necessary under Batson analysis. This meant that the issue was not moot and reviewable on appeal. The Court then concluded that the defendant had successfully established a prima facie case of discrimination based on skin color.

The Court then considered whether the prosecutor had put forth a non-discriminatory reason for the strike. The Court cited several cases showing that failing to recall a non-discriminatory reason is insufficient under the second stage of Batson analysis. After finding that the defendant had succeeded in establishing a prima facie case of discrimination and that the prosecutor had failed to put forth a non-discriminatory reason, the Court held that the trial court committed reversible error by not seating the juror.

One Judge concurred that the trial court committed reversible error by not seating the juror but believed the court erred in establishing a new Batson classification.

The concurring judge argued that the majority had misapplied New York mootness doctrine. Where the majority concluded that the issue of Batson analysis was not moot because the trial judge never made a final ruling on the classification, the concurring judge disagreed. The judge noted that the prosecutor articulated non-discriminatory reasons for four of the five excluded persons before the trial judge made a ruling on the prima facie case of discrimination. The judge concluded that the immediate response by the prosecutor mooted the issue. The judge would have held that it was error to exclude the one juror for which no reason was articulated but would not have addressed the Batson argument.

The concurring judge also criticized the majority’s conclusion that the judge did not make an ultimate decision. The judge argued that by not seating the juror, the judge made an ultimate decision even if it was not stated on the record.

Man’s Sexual Tendencies Properly Admitted to Jury

–by Darian Niforatos

Citations: People v. Brewer, 2016 N.Y. LEXIS 3495 (2016); People v. Molineux, 61 N.E. 286 (N.Y. 1901).

Abstract: The issue surrounding this case was whether the trial court erred in allowing the People to submit evidence of the distinctive manner in which the defendant engaged in sexual acts with consenting adults. The evidence was admitted because it confirmed the testimony of two minor victims since it was highly relevant, and its probative value was not outweighed by the potential for prejudice.

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The two victims in this case were sisters, aged nine and seven.  They lived with their mother, along with the defendant and other adults in a house that was used for selling drugs and engaging in sexual activities.  The defendant sexually abused the sisters in an unusual manner.  The defendant would take them into a back closet and have them perform oral sex while he smoked crack with his shirt pulled over his head.  The girls ran to their mother right after the incident to report what had happened.  After learning of this, the mother immediately packed up everything and left the house.

The evidence the People sought to introduce was the testimony of the mother and other women who had experienced performing oral sex on the defendant in the same manner the two sisters described: in a closet with his shirt pulled over his head while he smoked crack.

The defense argued the drug use and the sexual acts were “clearly prejudicial and not probative enough for the court to exercise its discretion and allow that testimony.”  The People argued it demonstrated a pattern of behavior. The trial court ruled in favor of the People on the condition the mother provide names, dates, and proof she had personally observed the other women performing sexual acts on the defendant.

The Appellate Division and this Court analyzed People v. Molineux, which limits the introduction of prior uncharged crimes or prior bad acts that show the defendant’s propensity towards crime. The Court concluded the evidence of the defendant’s drug use was an uncharged crime, and it was properly admitted as Molineux evidence because it was not used for propensity purposes, but rather to corroborate the details of the victims’ testimony. However, the sexual acts with consenting adults were not prior uncharged crimes and could not be considered Molineux evidence.  Nevertheless, the Court stated that even though the trial court classified it as Molineux evidence, it did not change the arguments brought forth and the trial court did not abuse its discretion.

Molineux and “propensity” evidence is only limited for policy purposes.  The fear is that the jury may be more likely to find the accused person guilty when it is known or suspected that he or she previously committed a similar crime.  To determine if the evidence should be admitted, the following factors must be considered: relevance, probative value to the People’s case, and potential prejudice to the defendant.

The court found the evidence was relevant and probative in that it matched the defendant’s unique sexual habits the minor victims described, especially since neither victim had ever witnessed the defendant engaged in such sexual acts with their mother or other consenting adults.  While almost all relevant, probative evidence will be somewhat prejudicial, it will not be automatically outweighed by prejudice simply because the evidence is compelling.  It is inevitable that there will be an intended and negative impact that flows from the evidence admitted.  Nevertheless, courts enjoy broad discretion in deciding whether to admit evidence, and the court will intervene when the trial court has either abused its discretion or exercised none at all.

In this case, even though the sexual encounters with the other adult women and the drug use were prejudicial to the defendant in that it strengthened the People’s case, considering the full extent of the evidence the court did not find the trial court abused its discretion in admitting the particular evidence.

Prosecutors Can Impeach with Inconsistent Statements to Police

–by Emily Keable

Citations: People v. Chery, 2016 N.Y. Lexis 3459 (2016); People v. Savage, 409 N.E.2d 858 (N.Y. 1980).

Abstract: When a defendant’s initial statements to the police differ from the testimony the defendant provides at trial, the prosecution is able to impeach the defendant.

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Procedural History

The defendant and another man robbed $215 from the complainant, who was the only employee at a small grocery store. The complainant was closing the store that night, but there were two other witnesses who testified at trial. The officers arrived at the scene and handcuffed both the defendant and the complainant, unsure at this point who was at fault. The officer observed a sharp wooden object in the defendant’s hand and a long wooden board on the sidewalk. The officer recovered $215 from the defendant’s pocket. After speaking with both parties and the two witnesses, the defendant was subsequently arrested.

Prior to trial, the trial court denied the defendant’s motion to suppress the statement he made to the responding officer at the scene. The defendant had asked the responding officer, “why isn’t [complainant] going to jail, he kicked my bike, he should go to jail too.” The defendant’s theory was that the statement was “spontaneous and not the product of investigation” and should therefore not be used against him.

At trial, the defendant took the stand and testified on direct examination that before the incident, he saw the complainant chasing two girls running away from the store. The complainant was yelling at the girls for trying to steal from the store. The defendant continued to testify that he told the complainant that yelling at the young girls was not good for business. The complainant then kicked the defendant’s bicycle and hit the defendant in the head with a piece of wood. The defendant testified that when the police arrived he had been struggling over control of the piece of wood with the complainant.

After direct, the prosecution asked the trial court to impeach the defendant with the defendant’s selective silence during the initial, spontaneous statement to the police. The prosecution relied on People v. Savage to assert that the defendant could be impeached as the defendant testified to certain events that were not included in the initial statement to police. Although the defense argued that Savage was distinguishable from the present case because the defendant in Savage had received Miranda warnings, the trial court allowed the prosecution to impeach the defendant. Subsequently, the defendant contradicted himself on the stand and he was convicted of robbery in the first degree and two counts of robbery in the second degree. The Appellate Division confirmed.

 

Rationale

The issue presented to the Court of Appeals was whether the trial court erred in allowing the prosecution to use the defendant’s selective silence to impeach the defendant’s testimony.

Initially, the court held that the defendant’s constitutional rights to due process or to remain silent were not invoked in this matter. Rather, the court focused on the prosecutor’s use of the defendant’s selective silence during a spontaneous statement for impeachment purposes.

The general evidentiary rule established precludes the use of a defendant’s pretrial silence. This rule has been held applicable both to direct examination and for impeachment purposes. The rational behind this rule has remained steadfast in that a defendant’s silence has a significantly low probative value due to its general ambiguity.

Savage recognizes a narrow exception to this rule. When “circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.”

The court held that this case fell within the confines of Savage. It emphasized that the defendant’s statement was made spontaneously at the scene in an attempt to inform the police on whom to arrest. The defendant’s statement was not inculpatory, but was rather a description of the event. Therefore, since the defendant testified that he spoke with police at the scene, the credibility of his initial spontaneous statement was legitimately called into question. It was viewed that the defendant’s selective silence to the police on facts that would have been more favorable to him illustrated an attempt to fabricate his testimony. Therefore, the jurors were properly allowed to draw their own conclusions from the prosecution’s introduction of the defendant’s selective statements.

New York Court of Appeals Takes Strict View on Preservation

—by David Katz

In re New York City Asbestos Litigation (Konstantin v. Tishman Liquidating Corp.), 2016 N.Y. LEXIS 1765; 2016 NY Slip Op 05064 (N.Y. June 28, 2016), aff’g on other grounds 121 A.D.3d 230 (N.Y. App. Div. 2014).

Abstract:

The Court of Appeals recently reminded litigators that preservation doctrine favors the cautious litigator who renews his objections whenever circumstances change.  The Court held that an objection to allowing cases to be tried jointly was unpreserved for appellate review where parties settled after the order was made and the defendant failed to renew its objection at trial.

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On June 28, 2016, the New York Court of Appeals delivered a decision highlighting the pitfalls of preservation doctrine in New York.  “You snooze, you lose” is the basic aphorism that summarizes preservation doctrine, but the New York Court of Appeals reminded the legal community that a hole in the preservation chain can sever appellate review.  In re New York City Asbestos Litigation presented the Court with a specific iteration of an oft-faced preservation issue: when circumstances change, will an initial objection suffice for preservation purposes.

Ten plaintiffs moved to have their cases tried jointly.  The defendants opposed the joint trial, but the trial court allowed seven cases to be joined for trial.  Between the order granting a joint trial and the trial, five cases settled; thus, two cases remained to be tried.  One defendant did not renew its opposition to the joint trial.  After trial, one defendant made a post-trial motion challenging the joint trial.  The trial court denied the motion.

The defendant then appealed, arguing that the order allowing a joint trial was improperly made.  Plaintiffs, in response, argued that the issue was not preserved for appellate review because, amongst other arguments, Defendants’ opposition was not renewed after the five cases settled.

The First Department, in a three-to-two decision, found that the issue was preserved on review.  Specifically, the majority reasoned that the issue was preserved because the appeal stemmed from a final order, which brought the interlocutory order up for review.  As a result, the majority found that there was no need to renew an objection after five cases settled.  The majority, having found the issue preserved, affirmed the trial court’s decision on the merits.  The dissent also was not willing to find the issue unpreserved.  Instead, the dissent disagreed with the majority’s conclusion that the appendix on appeal was sufficient to permit appellate review.

A unanimous Court of Appeals affirmed the result, but wrote a separate opinion addressing the preservation issue.  According to the Court of Appeals, opposing the initial joint trial motion, along with a post-trial motion, was insufficient to preserve the issue for appellate review.  Instead, according to the Court of Appeals, the defendant should have renewed the motion after five plaintiffs settled in the hopes that the trial court would rebalance CPLR § 602 considerations in its favor.  As a result, the Court of Appeals refused to review the order.

The Court of Appeals reminds litigation counsel: object early, object often.  In order to argue a case effectively on appeal, litigators must remember to renew arguments, even if the litigator does not think the rationale underpinning the decision has changed.  Raising a trial court’s ire just before trial is a gamble, but the Court of Appeals reminded us that failing to preserve an issue is a sure bet against appellate review.