The People v. Jamel Black The People v. Eric Hollis The People of the State of New York v. Anthony Guardino The People v. Joseph Hecker
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 184
The People &c.,
Respondent,
v.
Joseph Hecker,
Appellant.
-----------------------------No. 185
The People of the State of New
York,
Respondent,
v.
Anthony Guardino,
Appellant.
-----------------------------No. 186
The People &c.,
Respondent,
v.
Eric Hollis,
Appellant.
-----------------------------No. 204
The People &c.,
Respondent,
v.
Jamel Black,
Appellant.
-----------------------------Case No. 184:
Robert S. Dean, for appellant.
Ellen Stanfield Friedman, for respondent.
Case No. 185:
David Touger, for appellant.
Amyjane Rettew, for respondent.
Case No. 186:
Meredith L. Turner, for appellant.
Jared Wolkowitz, for respondent.
Case No. 204:
William G. Kastin, for appellant.
Seth Lieberman, for respondent.
New York Civil Liberties Union et al., amici curiae.
CIPARICK, J.:
In Batson v Kentucky, the United States Supreme Court
formulated a three-step test to assess whether peremptory
challenges have been used by a party to exclude potential jurors
- 1 -
- 2 -
Nos. 184-186 & 204
on the basis of race (see 476 US 79, 94-98 [1986]).
These four
appeals, once again, center on the application of this nowfamiliar three-step Batson protocol.
At step one, "the moving
party bears the burden of establishing a prima facie case of
discrimination in the exercise of peremptory challenges" (People
v Smocum, 99 NY2d 418, 420 [2003]).
Once a prima facie case of
discrimination has been established, the burden shifts, at step
two, to the nonmoving party to offer a facially neutral
explanation for each suspect challenge (see Hernandez v New York,
500 US 352, 358-359 [1991]; People v Allen, 86 NY2d 101, 104
[1995]).
At the third step, the burden shifts back to the moving
party (see Smocum, 99 NY2d at 422; People v Payne, 88 NY2d 172,
183-184 [1996]) to prove purposeful discrimination and "the trial
court must determine whether the proffered reasons are
pretextual" (Allen, 86 NY2d at 104).
With this framework in place, in People v Hecker, we
are asked to resolve whether Supreme Court erred in concluding at
step three that the reasons offered by defense counsel to exclude
one Asian-American prospective juror were pretextual.
In People
v Guardino and People v Hollis, the issue presented is whether
the defendants in those cases failed to meet their burden in
establishing a step one prima facie case of purposeful racial
discrimination.
Finally, in People v Black, we are called upon
to determine whether Supreme Court's step three acceptance of the
race neutral reasons proffered by the People in peremptorily
- 2 -
- 3 -
Nos. 184-186 & 204
challenging three prospective jurors has record support.
I.
A. People v Hecker
A New York County grand jury indicted Hecker for one
count of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), a class B felony, for allegedly
selling three twists of crack cocaine to an undercover police
officer.
Hecker proceeded to trial and jury selection commenced
in June 2008.
At the beginning of jury selection, Supreme Court
advised the parties that they each would be given ten minutes to
voir dire the prospective jurors following the court's
preliminary examination, but that if either party desired more
time to speak with the jurors they should seek permission from
the court.
Supreme Court's preliminary questions ostensibly
consisted of two parts.
The first part pertained to the
prospective jurors' biographical information while the second
part focused on the jurors' legal backgrounds, contact with the
criminal justice system, and prior jury service.
Supreme Court
instructed the prospective jurors to familiarize themselves with
the court's questionnaire and those selected from the venire for
questioning would be asked to reference the question number and
provide the pertinent information.
Jury selection took place over the course of three
rounds.
During the first round of jury selection, Supreme Court
- 3 -
- 4 seated 18 panelists for questioning.
Nos. 184-186 & 204
The parties selected three
of these panelists to serve as jurors.
Of the remaining 15
panelists, Supreme Court excused five of them for cause while the
parties each utilized five of their 15 peremptory challenges.1
Defense counsel spoke to 12 of the 18 panelists on the first
round.
Out of the five panelists peremptorily challenged by
defense counsel, she had not questioned three of them.
Of these
three, one of them had not been addressed by the People either.
In the second round of jury selection, Supreme Court
similarly seated 18 prospective jurors and later excused four of
them for cause.
Two of the remaining 14 panelists seated during
this round, Chan and Lee, both of Asian descent, are relevant to
this appeal.
The following colloquy, in response to the
preliminary juror questionnaire, ensued between Chan and Supreme
Court:
"[CHAN]: My name is [ ] Chan. I
live with my husband in lower Manhattan [sic]
and for over 16 years. Number four is my
husband is working. I'm not.
"THE COURT: What type of work does your
husband do?
"[CHAN]: My husband working a technician.
My education, I have a business administration
in Associate Degree. Number six no. Number
seven, yes.2 Number eight, no. Number nine is
no. Number ten is no. Number 11 is no.
1
CPL 270.25 (2) (b) allows each party 15 peremptory
challenges where the highest crime charged is a class B felony.
2
Question seven concerned whether a prospective juror had
previously served on a trial jury.
- 4 -
- 5 Number 12 is no.
"THE COURT:
Nos. 184-186 & 204
Number 13 and 14 is no.
Thank you."
When it was Lee's turn to answer Supreme Court's questionnaire,
he responded narratively to the questions, noting that he was a
first-year law student at New York University.
Once Supreme Court completed its preliminary
questioning, the parties conducted their voir dire of the second
round panelists.
panelists.
Defense counsel questioned only five of the 18
At the point in time defense counsel had questioned
three of these panelists, Supreme Court advised her that she had
"one minute left" to complete her voir dire.
In her remaining
time, defense counsel asked two panelists, including Lee, whether
he would hold it against Hecker if he did not testify at trial.
Lee responded to this line of questioning as follows:
"I understand it's his legal right. However,
I have some trepidation on whether in the role
as a juror I could draw the distinction between
fact and law, especially given my legal
training. I'm a free-thinking individual
with an opinion of what the law is or ought
to be. So I'm concerned that unconsciously
whether that legal opinion might influence.
So, while I would consciously attempt to
force myself from the recognition of what
the law is, I think unconsciously --"
Supreme Court intervened at this juncture and the
following colloquy between it and Lee occurred:
"THE COURT: I'm failing to understand what
you are saying.
"[LEE]: I understand as a juror I'm only
supposed to evaluate questions of fact. To me
that means questions of credibility. So, if
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- 6 -
Nos. 184-186 & 204
the defendant were not to testify, that would,
to me, be some indicator of credibility.
However, as a matter of law, the defendant
need not self incriminate or testify against
himself.
"THE COURT: That's a basic constitutional
protection.
"[LEE]: Right.
"THE COURT: . . . Are you saying you have
some difficulty accepting the mandates of the
United States Constitution which presumes any
person accused of a crime of being innocent?
"[LEE]: No, your Honor.
"THE COURT: Are you saying that you would not
be able to, as a person who is aspiring to be
an attorney before the bar, afford an
individual that presumption and not follow
the Court's direction that the People have
the burden of proving a person accused of a
crime beyond a reasonable doubt?
"[LEE]: No, your Honor, I'm not saying that.
I'm saying, as an academic matter, I solely
recognize that. And I will strive as humanly
possible to draw that distinction. However, I
have no control over whatever unconscious
biases I develop.
"THE COURT: What sort of unconscious biases
would you anticipate?
"[LEE]: Just as a matter, I would have some
question as to why the defendant wouldn't
want to testify.
"THE COURT: I'm certain as a law student
you can imagine a host of reasons why a
defendant might elect not to testify. The
simplest of course is putting the People to
their proof. He may not be particularly
articulate and host of other reasons. The
question is, can you, in your mind, as you
said, as an intellectual exercise, put those
thoughts out of your mind in doing the job
that you would be sworn to do as a juror
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Nos. 184-186 & 204
which is to decide the case on the facts,
determine whether the People have proven the
case beyond a reasonable doubt, as is their
burden, without factoring into that equation
the musings, if you will, that you have.
Can I have your assurance that you will do
that?
"[LEE]: Yes."
After this lengthy colloquy, Supreme Court informed
defense counsel that her allotted time to speak with the
remaining prospective jurors had expired.
Supreme Court then
directed the parties to consider the qualifications of the first
nine of the 18 prospective jurors questioned during this round.
After the parties completed their for cause challenges as to the
first nine jurors, the People and defense counsel each lodged two
peremptory challenges.
Defense counsel peremptorily challenged
Chan, whom neither she nor the assistant district attorney had
questioned.
The parties then evaluated the remaining nine
panelists.
Defense counsel challenged Lee for cause, reasoning
that "despite [the court's] variety of questions which I think at
a point put Mr. Lee in the position of almost an embarrassing
position where he began to give answers that seemed to attempt to
satisfy whether or not he could be fair and impartial . . . he
made it clear that he could not really sit as a juror in this
case . . ."
Supreme Court denied the application.
Later,
defense counsel peremptorily struck three additional jurors,
including Lee.
In total, both the People and defense counsel
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- 8 -
Nos. 184-186 & 204
used five of their remaining ten peremptory challenges during the
second round of jury selection.
Defense counsel's choice to strike Lee prompted the
People to make a reverse Batson challenge.3
In doing so, the
prosecutor highlighted the fact that defense counsel removed the
only two Asian jurors questioned thus far.
Defense counsel
immediately interjected to explain her decision for challenging
Lee.
She pointed out the controversial nature of Lee's responses
to her questions pertaining to Hecker's constitutional right not
to testify at his own trial.
She reminded Supreme Court of the
lengthy colloquy that ensued between it and Lee and suggested
that the intensive questioning by Supreme Court "embarrassed"
Lee, a law student, into giving answers that he could be fair and
impartial.
Under these circumstances, defense counsel maintained
that, regardless of race, Lee was a "questionable juror for a
defense attorney."
After these remarks, defense counsel further
stated, "I don't think that I have to go any further with respect
to juror number one" (meaning Chan).
Supreme Court, finding a pattern of discrimination
nonetheless, disagreed and asked defense counsel to articulate
race neutral reasons for peremptorily striking Chan.
3
Defense
Reverse Batson challenges relate to "discriminatory
practices by defense counsel" (People v Luciano, 10 NY3d 499, 502
[2008]) which are likewise unconstitutional (see Georgia v
McCollum, 505 US 42, 53-54 [1992]; People v Kern, 75 NY2d 638,
649-650 [1990]).
- 8 -
- 9 -
Nos. 184-186 & 204
counsel offered the following explanation:
"I found her as a person extremely austere in
her demeanor and her temperament. I felt
that [ ] there was nothing about her
personality or her lifestyle which indicated
to me that she would not be the kind of
individual who might be flexible in her
thinking. It seemed to me that she -her husband, I think she said, was a
business administrator, if I'm reading my
notes correctly. But at the point where I
eliminated her because of the brevity of our
ability to really question everyone at great
length, I was very selective in the short
period that I had which was all of ten
minutes to try to speak to as many of the 18
people as possible. And the short impression
that I got of her based upon my questions, in
fact, I don't even know if I questioned
her, but based upon what answers she gave to
anyone . . . I just got the feeling that I
could not relate to somebody with her
temperament."
The People did not respond to defense counsel nor did they
specifically challenge this reason as pretextual and Supreme
Court reserved its decision on the matter.
After a lunch recess, Supreme Court ruled on the
People's reverse Batson application.
While accepting the race
neutral reasons offered by defense counsel for striking Lee, it
concluded as to Chan that "the reasons articulated by counsel
[were] pretextual in nature and, in point of fact, there exists
no differentiation in my view between this juror's responses and
that of any of the other jurors which were found acceptable by
counselor."
In granting the People's reverse Batson application
as to Chan, Supreme Court further stated, "[t]he reasons as given
. . . such as austere personality, lifestyle, lack of
- 9 -
- 10 -
Nos. 184-186 & 204
flexibility, are not conclusions which would flow from the
answers given by this particular prospective juror."
Defense counsel protested Supreme Court's ruling and
argued that no pattern of discrimination had been established
since "we're speaking about one individual juror."
She further
contended that Supreme Court's ruling was erroneous in light of
the way she exercised her other peremptory challenges during the
first two rounds of jury selection.
Defense counsel also renewed
her argument that the limited time Supreme Court had allotted
during this round of jury selection prevented her from speaking
to most of the panelists.
She proposed that, given the
restricted time constraints of her voir dire, the court should
allow her to question Chan further.
open the voir dire as to Chan.
Supreme Court did not re-
Thus, at the completion of the
second round, the parties agreed upon four more jurors and
Supreme Court empaneled Chan over defense counsel's objection.
The jury selection process proceeded to a third round
where Supreme Court seated 26 new panelists for questioning.
parties selected the remaining four jurors from this group.
The
The
eighth person seated during this round of jury selection was
Choy, who spoke Chinese and whose husband was a police officer in
lower Manhattan.
She explained that she would be sympathetic to
police testimony and would not be able to be fair and impartial.
When defense counsel exercised a for cause challenge as to this
juror, Supreme Court granted the application on consent of the
- 10 -
- 11 People.
Nos. 184-186 & 204
Kazuko was the thirteenth person seated during this
round of jury selection.
During the preliminary questioning, he
told Supreme Court and the parties that he received his
bachelor's degree in Japan and that he coordinated tours for
Japanese tourists in New York City.
serve as a juror in this case.
The parties chose Kazuko to
Prior to Kazuko's selection,
defense counsel exercised three additional peremptory challenges,
all on individuals she had not questioned during her brief voir
dire.
Two of these three prospective jurors had likewise not
been questioned by the People.
The parties designated three panelists to act as
alternate jurors in this case.
Qu.
Alternate juror number two was
During Supreme Court's preliminary questioning, he informed
the parties that he earned his university degree in Beijing and
that he currently is the host for a "culture for Chinese
language" television and radio program.
The following day, before the People began calling
their trial witnesses, Supreme Court presided over a Hinton
hearing at which the undercover officer testified.
Following the
hearing, Supreme Court ordered the closure of the courtroom to
the public during the undercover's testimony, reasoning that the
officer "demonstrated a justifiable fear for his personal
safety."
Supreme Court also permitted the undercover to use his
shield number as opposed to his name to identify himself at the
hearing.
- 11 -
- 12 -
Nos. 184-186 & 204
The jury convicted defendant of third degree criminal
sale of a controlled substance.
Supreme Court sentenced
defendant to a determinate prison term of six years, followed by
a two-year period of postrelease supervision.
The Appellate Division unanimously affirmed the
judgment of conviction and sentence, concluding that "[t]he court
properly granted the People's Batson application" (68 AD3d 429,
430 [1st Dept 2009]).
The court further noted that "[c]ounsel's
failure to question the panelist was a significant indicator of
pretext under the circumstances" (id.).
In affirming the
conviction, the court also held that closure of the courtroom
during the undercover's testimony was proper (see id.).
A Judge of this Court granted defendant leave to appeal
(14 NY3d 801 [2010]) and we now reverse.
B. People v Guardino
A New York County grand jury returned a multiple-count
indictment charging Guardino and others with Enterprise
Corruption (Penal Law § 460.20 [1] [a]), a class B felony,
Combination in Restraint of Trade and Competition (General
Business Law §§ 340 and 341), and several counts of both Bribe
Receiving by a Labor Official (Penal Law § 180.25) and Grand
Larceny in the Third Degree by Extortion (Penal Law § 155.35).
From September 2001 to the date of the 2004 indictment, Guardino,
a business agent for Local Union No. 8 of the United Union of
Roofers, Waterproofers and Allied Workers ("Local 8"), allegedly
- 12 -
- 13 -
Nos. 184-186 & 204
approached a series of roofing contractors and extorted money
from them.
Before trial, four of Guardino's co-defendants and
the Local 8 itself entered guilty pleas.
Guardino and his three remaining co-defendants
proceeded to trial in October 2006.
The jury selection process,
given the complexity and expected two-month length of the trial,
began with the preliminary screening of a large pool of
prospective jurors.
These prospective jurors received a detailed
questionnaire, which they were instructed to complete.
The
parties reviewed these submissions and Supreme Court excused
those prospective jurors who believed they could not be fair or
could not serve because of the nature of the case.
Jury selection proceeded over the course of two rounds.
Supreme Court seated 26 jurors in each round.
Following the
questioning of the panelists by the parties, Supreme Court
removed one prospective juror for cause from each round.
The 12-person jury selected by the parties consisted of
seven males and five females.
By the time the parties had agreed
upon this jury, 37 prospective jurors -- 25 from the first round
and 12 from the second round -- were subject to peremptory
challenges.
The 37 panelists subject to these peremptory
challenges comprised 15 males and 22 females.
The People used 12
of their 15 peremptory challenges and struck 11 of the 22
females.
Six of the 22 females questioned were African-American.
The People peremptorily struck four of the six.
- 13 -
It is notable
- 14 -
Nos. 184-186 & 204
that neither defendant nor the three other defendants who went to
trial were black or female.
Guardino's counsel made a Batson challenge immediately
after the People utilized one of their peremptory challenges to
strike a fourth African-American female.
He asserted that the
People had eliminated all but one of the African-American females
thus far in the jury selection process.
Co-counsel asserted
"there's a broader pattern of all females, but certainly a
distinct pattern of female black" and "just even 80 percent would
. . . I think, qualify under Batson."
Finally, Guardino's
counsel said, "we have virtually an all white jury.
The
challenges have been used [by the prosecutor] to remove people of
color, all of them."
After all defense counsel made their initial arguments,
Supreme Court clarified that the asserted cognizable class
formulating the basis of the Batson challenge was black and
female.
Once defense counsel confirmed this, Supreme Court
corrected a misstatement made by the defense that the People had
eliminated all but one of the black female panelists, noting for
the record that it was the defense -- and not the People -- who
peremptorily struck one of these African-American females.
As
for the assertion that the People used their peremptory
challenges to create an all-white jury, Supreme Court counted
that seven of the 11 females peremptorily struck by the People
were white.
Moreover, Supreme Court highlighted the fact that
- 14 -
- 15 -
Nos. 184-186 & 204
defense counsel had exercised some of their peremptory challenges
to remove, in addition to one African-American female, other
people of color.
Upon reviewing the relevant data, Supreme Court
denied defendants' Batson application, reasoning that there had
"not been presented to me sufficient facts to make out a pattern
of purposeful use of peremptory challenges [] which include a
[]cognizable group."
The parties finished selecting the jury with five
alternate jurors from the remaining 13 second round panelists.
The defense neither made a record of the racial composition of
these panelists nor did they renew their Batson application.
The
record only reveals that three of the alternates chosen were
female while the other two were male.
The People peremptorily
struck one male and one female during this process while the
defense used five peremptory challenges to strike two males and
three females.
At trial, the People called a series of witnesses,
including a cooperating contractor and an undercover police
officer, who testified about how Guardino had continuously
threatened them with reprisals from 2001 to the date of the
indictment in order to extort monthly cash payments.
The jurors
also reviewed hundreds of recorded conversations of Guardino
making the same type of threats.
There was also evidence adduced
at the trial that defendant shared the proceeds of his
extortionate efforts with his various accomplices.
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Nos. 184-186 & 204
After a nearly two-month trial, the jury began its
deliberations.
Before the jury rendered its verdict, it sent a
series of notes indicating that it was deadlocked.
After
receiving one of these notes, Supreme Court spoke to the jurors
and instructed them to continue their deliberations, commenting
that it was "not uncommon for a jury that starts deliberating to
have difficulty initially in reaching a unanimous verdict."
When additional deadlock notes from the jury were
received, co-defense counsel made several requests to the court
to declare a mistrial.
motions.
Supreme Court denied these mistrial
Instead, it first delivered a modified Allen charge to
the jury and later a formal Allen charge.
During the fourth day
of deliberations, the jury found Guardino guilty of enterprise
corruption and 21 other related felony counts.4
He was sentenced
to serve an indeterminate term of six to 18 years in prison.
The Appellate Division, with one justice dissenting,
affirmed the judgment of conviction and sentence, concluding that
there was "ample evidence of labor racketeering committed for a
period of over a year by union officials including [Guardino]"
(62 AD3d 544, 546 [1st Dept 2009]).
The court also held that
Supreme Court properly denied Guardino's Batson application
because his numerical arguments were insufficient to establish a
prima facie case of purposeful discrimination.
4
The court further
The jury acquitted two of Guardino's co-defendants on all
counts. The jury convicted Guardino's other co-defendant of some
counts including four counts of bribe-receiving.
- 16 -
- 17 -
Nos. 184-186 & 204
found that Supreme Court's responses to the jury during its
deliberations and its denial of Guardino's mistrial motions were
proper.
A single justice dissented solely on Batson grounds.
The dissent concluded that Guardino met his prima facie burden in
establishing discrimination where the prosecutor struck four of
the six black female panelists.
Accordingly, the dissenting
justice would have held the appeal in abeyance and remitted the
matter to Supreme Court for "the prosecution to provide race
neutral reasons for their challenges, and if the prosecution
cannot do so, the judgment of conviction should be vacated" (62
AD3d at 551).
The dissenting justice granted defendant leave to
appeal and we now affirm.
C. People v Hollis
A New York County grand jury indicted Hollis for one
count of Criminal Sale of a Controlled Substance in the Third
Degree (Penal Law § 220.39 [1]), a class B felony, for allegedly
selling one $20 bag of crack cocaine to an undercover police
officer.
Hollis, an African-American male, proceeded to trial
and jury selection commenced in July 2005.
place over the course of three rounds.
Jury selection took
During the first round,
Supreme Court seated 20 prospective jurors for questioning and
later excused seven of them for cause.
Of the remaining 13
panelists, the parties agreed upon four jurors.
- 17 -
The People used
- 18 -
Nos. 184-186 & 204
four of their 15 peremptory challenges during this round while
the defense peremptorily challenged five panelists.
Supreme Court seated another 20 prospective jurors in
the second round and later excused eight of these panelists for
cause.
Of the remaining 12 panelists, the parties agreed upon
six more jurors.
The People and the defense each exercised three
peremptory challenges during this round.
The People utilized two
of their peremptory challenges during this round by striking
African-American panelists.
Defense counsel responded with a Batson challenge.
Supreme Court asked defense counsel the basis for his challenge,
to which he replied "[the People] excluded the only remaining
black people left on this jury."
The prosecutor interrupted and
informed Supreme Court that he had legitimate reasons outside of
race for striking these prospective jurors.
Supreme Court, however, determined that "the first
order of business is has a prima facie case been established?"
Defense counsel argued that it was simply "a question of numbers"
and that he established a prima facie case because the People had
eliminated the only two black people on this particular panel.
Supreme Court denied defense counsel's Batson application.
It
ruled that a prima facie case had not been set forth "at this
juncture," but that defense counsel could renew his Batson
application "later on."
In the third and final round of jury selection, the
- 18 -
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Nos. 184-186 & 204
parties agreed upon the remaining two jurors and selected four
alternate jurors.
Supreme Court also seated 20 prospective
jurors during this round, later excusing five of them for cause.
The People exercised one additional peremptory challenge while
defense counsel peremptorily struck two panelists before they
ultimately selected the 12-person jury.
The parties considered
six panelists to fill the four alternate slots.
The People
exercised two peremptory challenges during this process.
Defense
counsel did not renew his Batson application at the completion of
jury selection.
The racial composition of the 20 panelists
seated during the third round and the uncalled prospective jurors
who remained in the venire is unknown.
Although defense counsel
did not specifically note the racial composition of the 20
panelists seated in the first round of jury selection, he did not
allege that the People peremptorily struck African-American
panelists, if any, seated in that round.
The jury convicted Hollis of third degree criminal sale
of a controlled substance.
He was sentenced to an indeterminate
term of imprisonment of 4½ to 9 years.
The Appellate Division unanimously affirmed the
judgment of conviction and sentence.
Specifically, the court
concluded that Hollis failed to "produce evidence sufficient to
permit [Supreme Court] to draw an inference of discrimination"
and further noted that "defendant declined [Supreme Court's]
offer to renew the application at a later juncture" (63 AD3d 409,
- 19 -
- 20 -
Nos. 184-186 & 204
410 [1st Dept 2009]).
A Judge of this Court granted defendant leave to appeal
(13 NY3d 860 [2009]) and we now affirm.
D. People v Black
A Kings County grand jury indicted defendant for
Robbery in the First Degree (Penal Law § 160.15 [4]), a class B
felony, and other related charges for his alleged involvement in
an incident that took place in October 2004 at a grocery store in
Brooklyn.
The same grand jury also indicted Black for Criminal
Possession of a Weapon in the Third Degree (former Penal Law §
265.02 [4]) for his alleged possession of a loaded firearm in
November 2004.
Black, an African-American male, proceeded to trial and
jury selection commenced in March 2006.
place over the course of two rounds.
Jury selection took
The 12-person jury agreed
upon by the parties consisted of five African-American
individuals, five white individuals, and one juror of Asian
descent.
juror.
The record does not reflect the race of the twelfth
The parties also selected three alternate jurors, one
African-American and two white individuals.
During the first round of jury selection, Supreme Court
seated 17 jurors for questioning, later removing two of those
panelists for cause.
The People also challenged a third panelist
from this round, Petion, for cause.
When the People asked her
during voir dire whether she would have a problem convicting
- 20 -
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Nos. 184-186 & 204
Black even if they met their burden of proof, Petion hesitated
and then replied, "I may."
In his portion of the voir dire,
defense counsel questioned Petion as well and she told him that
she could follow the judge's instructions and return a guilty
verdict if the People proved every element of the crimes charged.
Satisfied that Petion could be impartial, Supreme Court denied
the People's for cause challenge.
Thus, the remaining 15
panelists in this round were subject to the parties' peremptory
challenges.
The People exercised six of their 15 peremptory
challenges in the first round, utilizing one of these strikes to
remove Petion who was African-American.
When lodging their peremptory challenges during this
first round, Supreme Court asked the parties initially only to
consider the first 12 jurors.
The People peremptorily struck
five of the first 12 jurors, using these challenges to strike
four African-American panelists (including Petion) and one white
panelist.
The record reveals that seven of the first 12
panelists were African-American.
The parties selected five
jurors from this first group of 12 -- three African-American
jurors, a white juror, and a juror of an unknown race, but not
black.
The People's removal of four of the seven AfricanAmerican prospective jurors prompted defense counsel to assert a
Batson challenge as to this cognizable group.
Supreme Court
asked defense counsel to articulate the basis for his
- 21 -
- 22 application.
Nos. 184-186 & 204
Defense counsel responded that the four black
jurors struck by the People "indicated [during voir dire] that
they could be fair, that they could be impartial, that they could
follow the judge's instructions on the law, even if they were in
disagreement with it."
With the exception of Petion, Supreme Court found that
the defense had established a prima facie case of discrimination
against the other three prospective jurors -- Gordon, Williams,
and Thomas.
The People disagreed with Supreme Court's prima
facie finding, pointing out that seven of the first 12 jurors
were "apparently African Americans."
Supreme Court, nonetheless,
adhered to its original prima facie ruling and asked the People
to state their race neutral reasons for striking these
prospective jurors.
The People's reasons for striking Gordon were twofold:
she was unemployed and lived in East New York, the neighborhood
adjacent to the crime scene.
The People peremptorily struck
Williams because she had not completed high school and was also
unemployed.
As for Thomas, the People perceived that his overall
demeanor during voir dire was disrespectful.
The People noted,
among other things, Thomas' slouched appearance and his attire.
Supreme Court determined that the reasons advanced by
the People were race neutral and invited defense counsel to argue
why it should find these reasons to be pretextual.
First,
defense counsel noted that East New York is the largest
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- 23 -
Nos. 184-186 & 204
"identifiable neighborhood" in Brooklyn and nothing about
Gordon's answers in voir dire suggested that she lived near the
vicinity of the crime scene.
Next, defense counsel asserted that
the unemployment status of Gordon and Williams should not be held
against them in evaluating their qualifications to serve as
jurors.
As to Thomas, defense counsel suggested that his manner
of dress was consistent with that of other young black males.
Defense counsel, in an effort to explain Thomas' appearance, also
reminded Supreme Court that Thomas had never served on a jury or
been in a courthouse before.
In arguing that the People's race
neutral reasons were pretextual, defense counsel never asserted
that similarly situated non-black prospective jurors were treated
more favorably by the People.
Supreme Court weighed the reasons set forth by the
People and defense counsel's arguments and ruled that the
People's reasons for striking these prospective jurors were
nonpretextual.
Supreme Court specifically observed that Thomas
"did seem to have a body-language problem with the district
attorney when responding to [his] questions."
Although Supreme
Court did not mention these facts in its ruling, a review of the
record reveals that of the first 12 prospective jurors, all but
Gordon and Williams and a third prospective juror, Solomon, were
employed.
The record also establishes that all of the first 12
prospective jurors other than Williams and Solomon completed high
school. Solomon, an African-American woman not challenged by the
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- 24 -
Nos. 184-186 & 204
People, was the third juror selected by the parties.
Although
she answered that she was currently unemployed, she informed
Supreme Court and the parties that she had worked as a home
health aide for 22 years.
After Supreme Court denied defense counsel's Batson
application, the parties completed the first round of jury
selection.
The People peremptorily struck one of the three
remaining panelists in round one.
In round two, the final round,
the People utilized two of their remaining nine peremptory
strikes.
The parties considered four panelists in order to
choose three alternate jurors.
The People peremptorily struck
one of these panelists while the other three were agreeable to
both parties.
The racial composition of the four prospective
jurors peremptorily struck by the People after the denial of the
Batson challenge is unknown, but the record reflects that defense
counsel did not renew his application at a later point.
Of the
seven jurors selected following the Batson challenge, five of the
seven were currently employed.
As for the other two jurors, one
had retired after working for 53 years and the other was in
college earning her nursing degree.
Of these seven jurors, the
record establishes that five of them had at least a high school
education.
One of the jurors, employed in child care, went to
high school through the 11th grade.
The juror who retired after
53 years of various employment did not discuss his educational
background.
The three alternate jurors were likewise employed.
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- 25 -
Nos. 184-186 & 204
Two of the alternate jurors had at least a college education.
The third alternate juror did not disclose his schooling.
The jury convicted Black of first degree robbery, third
degree criminal possession of a weapon, and other related
charges.
He was sentenced to consecutive sentences of 24 years
imprisonment on the robbery count and seven years imprisonment on
the weapons count.
Supreme Court also imposed a five-year period
of postrelease supervision.
The Appellate Division, with one justice dissenting,
affirmed the judgment of conviction and sentence.
Specifically,
the court concluded that "[Black] failed to satisfy his burden of
demonstrating discrimination by showing [the race neutral reasons
offered by the People] were pretextual" (65 AD3d 1370, 1371 [2d
Dept 2009]).
A single justice dissented on the grounds that the
race neutral reasons given by the People "bore no relation to the
facts of the case" and were, therefore, per se pretextual (id. at
1372).
A Judge of this Court granted defendant leave to appeal
(13 NY3d 937 [2010]) and we now affirm.
II.
Jury service is a civil right, rooted in our state
Constitution and protected by statute (NY Const, art I, §§ 1, 11;
Civil Rights Law § 13).
Both "a privilege and duty of
citizenship," jury service is "a fundamental means of
participating in government" (Allen, 86 NY2d at 108; see Kern, 75
- 25 -
- 26 NY2d at 651-652).
Nos. 184-186 & 204
Equally axiomatic is a defendant's right to
trial by an impartial jury (NY Const, art I, § 2; US Const 6th,
14th Amends; see People v Johnson, 94 NY2d 600, 610 [2000]).
To
that end, the Criminal Procedure Law permits each party to
exercise an unlimited number of for cause challenges where a
prospective juror "has a state of mind that is likely to preclude
him from rendering an impartial verdict based upon the evidence
adduced at trial" (CPL 270.20 [1] [b]).
Our Legislature has also provided litigants in criminal
actions the right to exercise, based upon the degree of crime
charged, a limited number of peremptory challenges (see generally
CPL 270.20 [2]).
CPL 270.25 (1), states that "[a] peremptory
challenge is an objection to a prospective juror for which no
reason must be assigned.
Upon any peremptory challenge, the
court must exclude the person challenged from service."
Long
recognized as "a means to achieve the end of an impartial jury"
(Ross v Oklahoma, 487 US 81, 88 [1988]), peremptory challenges
afford each side an opportunity to generalize about the potential
biases of prospective jurors and strike those who, regardless of
the evidence, seemingly will be unfavorable to their position at
trial (see also Holland v Illinois, 493 US 474, 484 [1990]).5
There are, of course, limitations to the practice of
peremptory challenges.
In its seminal ruling in Batson, the
5
Nonetheless, the use of peremptory strikes in criminal
actions has been subject to some criticism (see e.g. Allen, 86
NY2d at 109 n 2).
- 26 -
- 27 -
Nos. 184-186 & 204
United States Supreme Court held that "the Equal Protection
Clause forbids [a] prosecutor to challenge potential jurors
solely on the account of their race" (476 US at 89).
Following
the Supreme Court's initial pronouncement in Batson, the Equal
Protection Clause of the Federal Constitution and our State
Constitution have been interpreted to prohibit both the People
and the defense from exercising peremptory challenges in a
racially discriminatory manner (see McCollum, 505 US at 53-54;
Luciano, 10 NY3d at 502-503; Kern, 75 NY2d at 649-650).
The
holding in Batson has also been construed to apply to gender (see
JEB v Alabama ex rel TB, 511 US 127, 128-129 [1994] ["gender,
like race, is an unconstitutional proxy for juror competence and
impartiality"]).
III.
As stated earlier, Batson sets forth a three-step
procedure to assess a claim of discrimination during the jury
selection process.
We begin our analysis of each appeal with a
discussion of the step one prima facie case.
At step one, the
moving party bears the burden of establishing a prima facie case
that the nonmoving party has intentionally used its peremptory
challenges to discriminate against a cognizable group (see
Smocum, 99 NY2d at 419; People v Brown, 97 NY2d 500, 507-508
[2002]; Allen, 86 NY2d at 109; People v Childress, 81 NY2d 263,
266 [1993]).
In Allen, we recognized the logic in placing the
initial burden on the moving party, since the nonmoving party
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- 28 -
Nos. 184-186 & 204
need not give a reason for peremptorily striking a prospective
juror (see 86 NY2d at 109; CPL 270.25 [1]).
In Johnson v California (545 US 162 [2005]), the United
States Supreme Court held that the first-step burden in a Batson
challenge is not intended to be onerous (see id. at 170; see also
Jones v West, 555 F3d 90, 96 [2d Cir 2009]).
Indeed,
"demonstrating that members of a cognizable [ ] group have been
excluded [ ] is seldom problematic" (Childress, 81 NY3d at 266).
The more difficult component of the prima facie case, however, is
the moving party's burden to set forth "facts and other relevant
circumstances" to support an inference of discrimination (id.;
see Batson, 476 US at 96-98).
Thus, while a party may make a
Batson application at any time -- and even after only one strike
-- (see People v Bolling, 79 NY2d 317, 321 [1992]), we have
cautioned that purely numerical or statistical arguments are
"rarely conclusive in the absence of other facts or
circumstances" to give rise to an inference of discrimination
(Brown, 97 NY2d at 507; see Childress, 81 NY2d at 267; see also
Overton v Newtown, 295 F3d 270, 278 [2d Cir 2002]).
In establishing a prima facie case, "[t]here are no
fixed rules for determining what evidence will give rise to an
inference" of discrimination (Bolling, 79 NY2d at 323-324; see
also Brown v Alexander, 543 F3d 94, 101 [2d Cir 2008]).
Rather,
a party meets its burden when "the totality of the relevant facts
gives rise to an inference of discriminatory purpose (Batson, 476
- 28 -
- 29 US at 94).
Nos. 184-186 & 204
For example, "[group] identity between the defendant
and the excused [prospective jurors] might in some cases be the
explanation for the prosecution's adoption of the forbidden
stereotype," and, therefore, may "provide one of the easier cases
to establish both a prima facie case and a conclusive showing
that wrongful discrimination has occurred" (Powers v Ohio, 499 US
400, 416 [1991]).
Other relevant factors, though not exhaustive,
that a trial court should consider include:
"A pattern of strikes or questions and
statements made during the voir dire may be
sufficient in a particular case.
Additionally, this element may be established
by a showing that members of the cognizable
group were excluded while others with the
same relevant characteristics were not.
Another legally significant circumstance may
exist where the [party] has stricken members
of this group who, because of their background
and experience, might otherwise be expected
to be favorably disposed to the [party]"
(Childress, 81 NY2d at 266-267).
Once a party has placed its race neutral reasons on the
record, however, the sufficiency of the prima facie showing
becomes "moot" (Smocum, 99 NY2d at 422; People v James, 99 NY2d
264, 270 [2002]; Payne, 88 NY2d at 182).
We have consistently
held that "to revisit the adequacy of the step one showing,
unnecessarily evades the ultimate question of discrimination"
(id., quoting Durant v Strack, 151 F Supp 2d 226, 236 [ED NY
2001] [internal brackets and quotation marks omitted]).
First
pronounced by the United States Supreme Court in Hernandez (see
500 US at 359), we, as well as an overwhelming majority of the
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- 30 -
Nos. 184-186 & 204
Federal Circuit Courts of Appeals, have recognized that this
doctrine effectuates Batson's ultimate purpose -- "to provide
assurance . . . that criminal judgments are not tainted by
invidious discrimination" (Johnson v Love, 40 F3d 658, 665 [3d
Cir 1994]; see e.g. Jordan v LeFevre, 206 F3d 196, 200 [2d Cir
2000] [in the absence of a prima facie showing, "a trial court's
duty at the third stage (is) to determine the credibility of the
proffered (race neutral) explanations]; cf. United States v
Stewart, 65 F3d 918, 924-925 [11th Cir 1995]).
Accordingly,
while we "underscore the importance of . . . Batson's wellarticulated, sequential steps" (Smocum, 99 NY2d at 423), we will
continue to apply the "mootness doctrine" to our Batson
jurisprudence.
In Hecker and in Black, the trial courts proceeded to
steps two and three of the Batson test.
Therefore, we will only
examine the step one findings made by Supreme Court in Guardino
and Hollis.
A. People v Guardino
Applying these standards to Guardino, Supreme Court
properly held that the defense failed to meet its step one burden
of establishing a prima facie case.
Here, co-defense counsel
raised a Batson challenge alleging that the People impermissibly
used their peremptory challenges to exclude four African-American
females from the jury.
In doing so, co-defense counsel alleged
that the People used their challenges to create an "all white
- 30 -
- 31 -
Nos. 184-186 & 204
jury" by eliminating females generally and by excluding all but
one of the black female panelists subject to peremptory
challenges.
The defense made no record of the racial or gender
composition of the remaining venire nor did they articulate other
facts or circumstances that, in their view, gave rise to an
inference of discrimination.
Evaluating the numerical assertions set forth by the
defense, Supreme Court corrected the record, noting that it was
the defense who had actually struck one of the African-American
female panelists.
Moreover, Supreme Court observed that of the
11 females that the People peremptorily struck, seven of them
were white.
Based on these findings, Supreme Court denied the
Batson application.
Indeed, at the time of the Batson challenge,
37 jurors -- 15 male and 22 female -- were subject to the parties
peremptory challenges.
American.
Six of these females were African-
The People used 11 of their 12 peremptory challenges
to remove females, four of whom were African-American.
The 12-
person jury ultimately selected by the parties from this group
consisted of five females, one of whom was African-American.
Thus, this is not the type of case where mere numerical
assertions alone will give rise to a mandatory inference of
discrimination.
Most obviously, Guardino did not and could not
assert that the People engaged in a wholesale exclusion of all
the African-American women seated in the two panels.
This case
contrasts with the many cases where this Court and the United
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- 32 -
Nos. 184-186 & 204
States Supreme Court have held that total exclusion of a
cognizable group would give rise to an inference of
discrimination (see e.g. Johnson, 545 US at 166 ["all of the
prospective black jurors had been stricken from the pool"];
Batson, 476 US at 100 [prima facie case established where
prosecutor excludes all four black prospective jurors from the
venire]; People v Hernandez, 75 NY2d 350, 353 [1990] [the removal
of the only four Latino jurors out of a 63-person venire gives
rise to a prima facie case]; People v Scott, 70 NY2d 420, 425
[1987] ["defendant established a prima face claim that the
prosecution used its peremptory challenges to exclude [all five]
blacks [in the venire] from her petit jury"]).
In cases where we have sustained a prima facie showing
of purposeful discrimination absent a 100% exclusion rate of a
cognizable group, the moving party has placed other factors on
the record to meet the step one burden.
in Bolling are illuminating.
On this point, the facts
In that case, the defendant, an
African-American male, pointed to numbers that revealed that of
the five peremptory challenges utilized by the People, they
struck four of the five potential African-American jurors (see
Bolling, 79 NY2d at 322).
There, in making a successful prima
facie showing, the defendant not only highlighted this
statistical argument to the trial court, but augmented his
showing by noting that two of the four excluded jurors had proprosecution tendencies with "ties to law enforcement" (id.).
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- 33 -
Nos. 184-186 & 204
In contrast, in People v Steele, a companion case
decided along with Bolling, we concluded that the mere
statistical fact that the People used 75% of their challenges to
strike 50% of the prospective African-American jurors was not
sufficient to meet the prima facie threshold (see id. at 325; see
also People v Jones, 284 AD2d 46, 47 [1st Dept 2001] [reliance on
numbers alone insufficient to establish a prima facie case, but
rather "depends on proof of facts and circumstances"]).
Here,
like the defendant in Steele, Guardino did not articulate
additional factors as part of his step one prima facie showing.
Moreover, one of the factors that is relevant to a
court's prima facie determination, in the context of a Batson
challenge raised by the defense, is whether a defendant is a
member of the same cognizable group the People are aiming to
exclude (see Powers, 499 US at 416).
Guardino and his three co-
defendants were white males while the purported cognizable group
asserted by their Batson challenge was "black females."
Although
we fully acknowledge that the United States Supreme Court has
disposed of the standing requirement, which previously compelled
defendants to show that they were a member of the same cognizable
class challenged by the prosecution (see Batson, 476 US at 96),
the Supreme Court, nevertheless, emphasized that it remains a
factor in evaluating whether the totality of the circumstances
gives rise to a showing of purposeful discrimination (see Powers,
499 US at 429).
In evaluating this factor, we note that the
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- 34 -
Nos. 184-186 & 204
defense neither argued that the People treated the four AfricanAmerican challenged panelists disparately vis-a-vis the
unchallenged prospective jurors nor did they suggest that the
People excluded this cognizable group because they would, for
some reason, be more favorably disposed to the defense position.
In sum, because the numerical arguments alone advanced
by Guardino did not give rise to a prima facie case of
impermissible discrimination, we conclude Supreme Court properly
denied his Batson application.
B. People v Hollis
The facts alleged by the defense to support a prima
facie case of racial discrimination in Hollis likewise rested
solely on numerical grounds.
In this case, Hollis, an African-
American male, asserted a Batson challenge during the second
round of jury selection, following the People's removal of the
only two African-American panelists considered in that particular
round.
Although the People in Hollis immediately indicated that
they could specify their race neutral reasons for striking these
prospective jurors, Supreme Court reminded the parties that it
first had to resolve whether a prima facie case of discrimination
had been established.
To that end, defense counsel simply
contended that it was "a question of numbers."
Notably, defense
counsel did not make a record of the racial composition of the
remaining venire nor did he argue that the People peremptorily
struck African-American prospective jurors seated during the
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- 35 -
Nos. 184-186 & 204
first round.
Furthermore, defense counsel did not enumerate any
other factors supporting an inference of discrimination.
In
accordance with our precedent, Supreme Court denied the motion,
concluding that a prima facie case had not been set forth "at
this juncture."
Supreme Court, however, specifically advised
defense counsel that he could renew his Batson challenge at a
later point if he saw fit.
At the conclusion of the voir dire,
defense counsel elected not to renew his Batson challenge.
Therefore, since Hollis failed to meet his step one burden of
establishing a prima facie case of impermissible discrimination,
Supreme Court's denial of the Batson application was entirely
proper.
IV.
Having completed our analysis of the step one Batson
procedure, we now examine steps two and three of this tripartite
test.
Once a prima facie case of impermissible discrimination
has been established, the burden shifts, at step two, to the
opposing party to set forth a race neutral reason for each of the
stricken jurors (Hernandez, 500 US at 358-359).
A race neutral
reason naturally "means an explanation based on something other
than the race of the juror" (id. at 360).
In Smocum, we held
that, "[i]f the nonmovant cannot meet this burden, an equal
protection violation is established.
However, once race neutral
reasons are given, the inference of discrimination is overcome.
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- 36 -
Nos. 184-186 & 204
At this second stage the reasons need be only facially
permissible" (99 NY2d at 422).
If the explanations proffered by the nonmoving party
are race neutral, the burden then shifts back, at step three, to
the moving party to "persuad[e] the court that reasons are merely
a pretext for intentional discrimination" (id.; Payne, 88 NY2d at
183-184).
"It is therefore the moving party's burden to make a
record that would support a finding of pretext" and a trial court
must make its "ultimate determination on the issue of
discriminatory intent based on all of the facts and
circumstances" (Smocum, 99 NY2d at 422).
Moreover, as the
Supreme Court explained in Purkett v Elem (514 US 765 [1995]),
"At [ ] stage [three], implausible or fantastic
justifications may (and probably will) be
found to be pretexts for purposeful
discrimination. But to say that a trial
judge may choose to disbelieve a silly or
superstitious reason at step three is
quite different from saying that a trial judge
must terminate the inquiry at step two when the
race neutral reason is silly or superstitious.
The latter violates the principle that the
ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from,
the opponent of the strike"
(id. at 768).
The Batson inquiry "vests the trial judge with broad
discretion to determine the parties' credibility" (Luciano, 10
NY3d at 505).
"Credibility can be measured by, among other
factors the demeanor [of the opposing party]; by how reasonable,
or how improbable, the explanations are; and by whether the
- 36 -
- 37 -
Nos. 184-186 & 204
proffered rationale has some basis in accepted trial strategy"
(Miller-El v Cockerell, 537 US 322, 339 [2003]; see also Snyder v
Louisiana, 552 US 472, 477 [2008] [demeanor of attorney who
exercises peremptory challenges often the best evidence of
impermissible discrimination]).
Accordingly, this third-step inquiry is a "pure issue
of fact," and the trial court's determination whether a proffered
race neutral reason is pretextual is accorded "great deference"
on appeal (Miller-El, 537 at 339).
"Deference is necessary
because a reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial court to
make credibility determinations" (id.; see also Smocum, 99 NY2d
at 422 [a step three "determination is a question of fact,
focused on the credibility of the race neutral reasons"]).
Thus,
a trial court must establish a meaningful record for a reviewing
court to uphold its ruling (see Payne, 88 NY2d at 184).
Only Hecker and Black advanced to steps two and three
and we will now examine them separately.
A. People v Hecker
Applying these standards to "all of the circumstances
that bear upon the issue of racial animosity" (Snyder, 552 US at
478), we conclude that in Hecker there is no record support for
Supreme Court's finding of pretext.
In that regard, our review
power is limited to the examination of Supreme Court's pretext
determination in light of the reasons placed on the record by
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- 38 -
Nos. 184-186 & 204
defense counsel concerning her removal of Chan.
In doing so, we
cannot engage in fact finding, but merely search the record for
support for the trial court's ultimate pretext determination.
Here, defense counsel's reasons for striking Chan were
essentially twofold.
She informed Supreme Court that (1) she
felt Chan appeared "austere in her demeanor and temperament."
In
making that assessment, defense counsel acknowledged that (2) in
the "short" ten minutes allotted to her to voir dire all 18 of
the panelists, she was unable to speak with everyone.
As a
result, defense counsel had to make "selective" choices in
picking jurors and struck Chan because she did not know much
about this panelist.
When Supreme Court made its finding of pretext, it
focused exclusively on defense counsel's remarks concerning
Chan's demeanor and temperament and concluded those assessments
were not "conclusions which would flow from the answers given by
[Chan]."
In addition, Supreme Court held that there was "no
differentiation . . . between this juror's responses and that of
any of the other jurors which were found acceptable to
counselor."
We hold that these conclusions are an overly
constricted view of the record as a whole that warrant no
deference on review.
To begin, the People allege that defense counsel's
choice not to ask Chan "a single question" is an indication of a
specific racial bias against this juror.
- 38 -
We disagree.
There can
- 39 -
Nos. 184-186 & 204
be no doubt that the trial judge severely curtailed the parties
from questioning the panelists, precluding them from conducting a
more meaningful voir dire.
Supreme Court specifically informed
the parties that they only had ten minutes to voir dire the
panelists in each round.
In the second round of jury selection,
defense counsel asked questions of only five of the seated 18
panelists.
This fact, without more, cannot mean that defense
counsel exhibited a bias against Chan or the other 12
unquestioned panelists.
Rather, what it more realistically
reveals is the impossibility of directing her attention to all of
the panelists in the brief time she had to address them.6
Furthermore, there is no support in the record to
conclude that defense counsel purposely avoided questioning
panelists of Asian descent in order to justify peremptorily
striking them at a later point.
Rather, the record demonstrates
that it was defense counsel who actually posed Lee a question in
the second round of jury selection.
When defense counsel began
questioning him -- the fifth and final panelist she was able to
address that round -- Supreme Court cautioned her that she had
"one minute left."
Moreover, defense counsel's voir dire in that
round was further cut short by the lengthy colloquy that ensued
between the judge and Lee.
Significantly, when the court
6
Our review of the record establishes that in the first
round of jury selection, defense counsel questioned 12 of the 18
panelists. In the third round, out of the 26 seated panelists,
defense counsel had the occasion to question only three of them.
- 39 -
- 40 -
Nos. 184-186 & 204
finished its questioning of this controversial panelist, it
summarily informed defense counsel her time to voir dire had
expired.
While defense counsel did not initially approach the
judge and ask for more time to question Chan or any of the other
panelists, there is no record support that this omission was
racially motivated.
Therefore, although inartfully worded, the crux of
defense counsel's race neutral explanation to strike Chan was
that she knew little to nothing about her.
Her decision to
strike Chan thus cannot be construed to be rooted in "racial
animosity" (Snyder, 552 US at 478) but rather a "rationale [with]
some basis in accepted trial strategy" (Miller-El, 537 US at
339).
Defense counsel's strategy, as the record bears out, was
not to avoid or ignore a particular class of prospective jurors
based on race but to remove jurors whom either she or both
parties did not have time to address.
Next, the People contend that defense counsel's initial
"reluctance" to offer a race neutral reason for striking Chan
supports Supreme Court's later finding of pretext.
likewise misconstrues the record.
This argument
Rather, our examination of the
record clearly demonstrates that defense counsel was of the
genuine belief she was under no requirement to provide a reason
for her peremptory strike (see CPL 270.25 [1]) because no pattern
of discrimination had been established.
A peremptory challenge
is a challenge for which "no reason must be assigned" (id.).
- 40 -
- 41 -
Nos. 184-186 & 204
Defense counsel, who had originally challenged Lee for cause,
vociferously explained her basis for striking Lee in a clear
effort to refute the People's assertion that a pattern of
discrimination against persons of Asian descent had been
established.
Indeed, defense counsel went to great lengths to
demonstrate that Lee was a "questionable juror for a defense
attorney."
Although Supreme Court had denied defense counsel's
earlier for cause challenge, she argued, in peremptorily striking
Lee, that he wavered in accepting the basic constitutional
principle that Hecker had no obligation to testify.
She further
suggested that the trial judge's intensive questioning did not
rehabilitate him, but rather coerced Lee, "an aspiring law
student" -- through embarrassment by the court -- into promising
that he could set aside his desire to hear Hecker's version of
the events and render a verdict in accordance with the evidence.
Thus, it makes sense that defense counsel would focus
her remarks on Lee, whose controversial admissions occupied the
majority of the questioning during that section of the voir dire,
and not comment on Chan.
Therefore, because defense counsel
attempted to dispute that a pattern of discrimination had been
established, her decision not to explain her basis for
challenging Chan does not demonstrate a racial bias against this
juror, but rather reflects her understanding of the statutory
right to lodge peremptory challenges without having to provide a
reason.
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- 42 -
Nos. 184-186 & 204
In our view, what is more telling than defense
counsel's purported "reluctance" to place her reasons for
striking Chan on the record is her proposal to reopen the voir
dire following Supreme Court's finding of pretext.
After Supreme
Court made its ruling, defense counsel protested the validity of
the finding, reemphasizing that no pattern of discrimination had
been established in the first instance.
She also renewed her
argument that the limited time allotted to her to voir dire the
panelists prevented her from speaking with most of them.
Consequently, she asked to be given the opportunity to question
Chan further, which the court denied.
While we refrain from
characterizing Supreme Court's denial of this request as an abuse
of discretion as a matter of law, we note that the record would
have been more complete if Supreme Court agreed to defense
counsel's proposal.
More importantly, we find that defense
counsel's willingness to question Chan indicative of her genuine
desire to learn more about this prospective juror and a
reflection that her decision to strike her in the first instance
was not on account of race.
Nor can it be said from this record
that defense counsel's reflections about Chan's austere demeanor
and temperament indicate impermissible racial stereotyping.
In addition, Hecker maintains that the "flimsiness" of
the step one prima facie showing of racial discrimination in this
case is a factor that we ought to consider in determining whether
we should accord deference to Supreme Court's step three
- 42 -
- 43 pretextual ruling.
Nos. 184-186 & 204
While the sufficiency of the prima facie case
showing becomes moot once a party states its race neutral reasons
for lodging a peremptory strike (see Smocum, 99 NY2d at 422), we
agree with Hecker that the strength or paucity of the step one
showing is a factor that should be considered in determining
whether the record as a whole supports a finding of pretext (see
Snyder, 552 US at 478 ["[a]ll of the circumstances that bear upon
the issue of racial animosity must be consulted"] [emphasis
added]).
The language in Smocum, which states "[i]t makes no
sense . . . to revisit the issue of whether a prima face case has
been made once [a party] has come forward with race neutral
reasons" (99 NY2d at 422) merely stands for the proposition that,
once race neutral reasons have been advanced by a party, a trial
court cannot return to the adequacy of the prima facie showing
and end its inquiry there.
Turning to the prima facie showing in this case, we
observe that in the second round of jury selection, defense
counsel utilized two of her 15 peremptory challenges to strike
two prospective jurors of Asian descent, one of whom she
attempted to remove for cause.
In response, the People made a
reverse Batson application, simply noting for the record that the
defense had eliminated the only two Asians questioned at that
point.
The People did not contend that the defense struck all
persons of Asian descent from the venire.
Indeed, such an
argument could not have been advanced by the People.
- 43 -
At least
- 44 -
Nos. 184-186 & 204
three other persons from the venire were likely of Asian descent
-- Choy, who spoke Chinese, Kazuko, who received his bachelors
degree in Japan and coordinated tours for Japanese tourists in
New York City, and Qu, who received his university degree in
Beijing and who hosts "culture for Chinese language" television
and radio programs.
Therefore, the People's prima facie case, which rested
solely on the fact that defense counsel struck two jurors of
Asian descent in one particular round, including Lee who would
have been a problematic juror for any defendant and who was
unsuccessfully challenged for cause, was weak and is another
factor that undermines Supreme Court's step three pretext
finding.
In sum, although appellate courts accord great
deference to trial judges' step three determinations, we conclude
that Supreme Court's step three reverse Batson ruling was
erroneous and that there is no record support for Supreme Court's
rejection of defense counsel's race neutral reasons for striking
Chan.
The People simply failed to meet their burden that racial
discrimination was the motivating factor for defendant's
challenges (see Smocum 99 NY2d at 422; Payne, 88 NY2d at 183-184;
Allen, 86 NY2d at 104).
Because Supreme Court erred in precluding defense
counsel from exercising a peremptory strike against Chan, we must
determine whether such error entitles this defendant to a new
- 44 -
- 45 trial.
Nos. 184-186 & 204
The People argue Hecker is not entitled to a new trial
because any error in seating Chan on the jury was harmless and
did not deprive him of a fair trial.
In support of this
proposition, the People rely on the United States Supreme Court’s
recent pronouncement in Rivera v Illinois (__ US __, 129 S Ct
1446 [2009]).
In that case, the issue on appeal was whether the
erroneous denial of a defense peremptory challenge required
automatic reversal of his conviction pursuant to the due process
clause of the Fourteenth Amendment (see 129 S Ct at 1450).
Supreme Court answered this question in the negative.
The
In doing
so, the Supreme Court recognized that "there is no freestanding
constitutional right to peremptory challenges" (id. at 1453).
Moreover, the Court held that "[b]ecause peremptory challenges
are within the States' province to grant or withhold, the
mistaken denial of a state-provided peremptory challenge does
not, without more, violate the Federal Constitution" (id. at
1454).
The United States Supreme Court, however, noted that
"[a]bsent a federal constitutional violation . . . States are
free to decide, as a matter of state law, that a trial court's
mistaken denial of a peremptory challenge is reversible error per
se" (id. at 1456 [emphasis added]).
Thus, we look to our precedents and hold that such a
mistake under New York law mandates automatic reversal.
Recently, in Luciano, we too recognized that "[t]hough not a
- 45 -
- 46 -
Nos. 184-186 & 204
trial tool of constitutional magnitude, peremptory challenges are
a mainstay in a litigant's strategic arsenal," protected by the
Criminal Procedure Law (10 NY3d at 502).
"From 'earliest times
the right of peremptory challenge was the privilege of the
accused'" (id., quoting People v McQuade, 110 NY 284, 293
[1888]).
In People v Jones, one of the three cases before us in
Payne, we observed that in the context of a reverse Batson test,
Supreme Court, at step two, commanded the defense to "articulate
non-pretextual reasons for the challenges" (88 NY2d at 186).
Because Supreme Court's "merger of the step two and three
requirements" impermissibly shifted the burden of persuasion on
the issue of pretext from the People to the defense, we reversed
the order of the Appellate Division and remitted the case to
Supreme Court so that the trial court could satisfy the threestep Batson requirements (id.).
We noted, however, that "if the
requirements [were] not satisfied, the judgment of conviction
should be vacated," in essence, because the defendant was
deprived of his statutory right to exercise peremptory challenges
(id.).
Since, as the United States Supreme Court recently stated
in Rivera, States are free to decide whether an erroneous denial
of a peremptory challenge is reversible error per se, we perceive
no basis to depart from our existing precedent (see also People v
Wilson, 23 AD3d 682, 682 [2d Dept 2005] [judgment reversed where
trial court erred in rejecting defendant's peremptory challenge])
- 46 -
- 47 -
Nos. 184-186 & 204
and hold that the unjustified denial of a peremptory challenge
violates CPL 270.25 (2) and requires reversal without regard to
harmless error (see Payne, 88 NY2d at 186).
The dissent's criticism of our reliance on our cases
which pre-date Rivera is unpersuasive (see dissenting op at 4-5).
In Rivera, the United States Supreme Court specifically
acknowledged the split in State authority at the time it rendered
its decision (compare Angus v State, 695 NW2d 109, 118 [Minn
2005] [applying automatic reversal rule]; State v Vreen, 143 Wn
923, 927-931, 26 P3d 236, 238-240 [Wash 2001] [same], with People
v Bell, 473 Mich 275, 292-300, 702 NW2d 128, 138-141 [Mich 2005]
[rejecting automatic reversal rule]).
In affirming Illinois'
decision to reject the automatic reversal rule when a peremptory
challenge is erroneously denied, the Supreme Court made it clear
that the States that opted to apply an automatic reversal rule -pre-Rivera -- were permitted to do so.
Moreover, other States, following the United States
Supreme Court's pronouncement in Rivera, have continued to apply
an automatic reversal rule (see e.g. Commonwealth v Hampton, 457
Mass 152, 165, 928 NE2d 917, 927 [Mass 2010] [given the
importance of peremptory challenges in State jurisprudence, "[w]e
continue to adhere to the view that, for purposes of State law,
the erroneous denial of a peremptory challenge requires automatic
reversal"]).
We are also unmoved by the premonition cited by the
- 47 -
- 48 -
Nos. 184-186 & 204
dissent that an automatic reversal rule will "likely discourage
trial courts and prosecutors from policing a criminal defendant's
discriminatory use of peremptory challenges" (Rivera, 129 S Ct at
1445; see dissenting op at 4-5).
speculative.
At most, this is purely
Rather, we believe that, no matter which party
advances a Batson challenge, adherence to the three-step protocol
-- as in Guardino, Hollis and Black -- will prevent a trial judge
from "an error that would upset a conviction" (see dissent op at
6).
B. People v Black
In contrast to Hecker, we conclude that there is record
support for Supreme Court's acceptance of the race neutral
reasons in Black.
Preliminarily, we observe that Supreme Court
adhered to both federal and state precedent in following the
three-step Batson protocol.
Once Supreme Court found a prima
facie case, it asked the People, at step two, to state their
reasons for challenging the jurors on the record.
After the
People completed this step, Supreme Court ruled that the
articulated reasons were facially race neutral (see Smocum, 99
NY2d at 422) and proceeded to step three of the Batson inquiry.
Then, Supreme Court asked defense counsel to explain why the
People's proffered race neutral reasons were pretextual.
At this step, Black did not meet his ultimate burden of
persuasion.
First, with respect to Thomas, the People's
articulated basis for striking him related to his overall
- 48 -
- 49 courtroom demeanor.
Nos. 184-186 & 204
Indeed, Supreme Court recognized that Thomas
had a "body-language problem" when questioned by the People.
We
accord great deference on review to Supreme Court's observations
of demeanor and credibility determinations (see Miller-El, 537 US
at 339; Smocum, 99 NY2d at 422).
We also conclude that the reasons for striking Gordon
and Williams -- residence, employment status, and educational
backgrounds -- had "some basis in accepted trial strategy"
(Miller-El, 537 US at 339).
Defendant asserts and the dissenting
justice at the Appellate Division agreed, however, that since
these reasons bore no relation to the actual facts of this
particular case, they are "per se" pretextual.
We reject this
rule as overly restrictive and hold that trial courts must
evaluate whether the proffered step two race neutral reasons are
pretextual based on the totality of all the relevant facts and
circumstances (see Payne, 88 NY2d at 187 n 2; see also People v
Brown, 283 AD2d 312, 312-313 [1st Dept 2001] [People not required
to "show that the peremptory challenge was specifically related
to the facts of the case"]).
Whether a proffered reason relates to the facts of a
case or a prospective juror's qualifications is certainly a
factor relevant to a court's determination of pretext, but, in
our view, is not automatically dispositive.
We observe that jury
selection is, if not an art, an inexact science.
In general, as
a review of all these cases bears out, it is impossible to learn
- 49 -
- 50 -
Nos. 184-186 & 204
everything about a particular prospective juror during the
screening process.
Consequently, in deciding whether to
challenge a prospective juror, the parties often rely on past
experiences or "gut feelings" in making their selections.
So
long as race or gender is not a factor in the decision-making
process, the parties are free to exercise their allotted
peremptory challenges as they deem appropriate (see e.g. People v
Mancini, 219 AD2d 456, 458 [1st Dept 1995] ["given the
inexactness of the art of jury selection, an attorney is entitled
to rely on personal experience with those employed in a
particular capacity to screen potential jurors"]).
A party, for example, might not want a prospective
juror who lives in a particular neighborhood or who works in a
certain field to sit on the jury because that party believes -for reasons unrelated to the facts of the case -- that such
individual may have a more sympathetic attitude or view toward
the opposing party (see e.g. People v Wilson, 43 AD3d 1409, 1411
[4th Dept 2007] [permissible for People to challenge social
worker where prosecutor believed that social worker was
predisposed to being more favorable to defendant]).
Likewise, a party's decision to strike a prospective
juror who has little to no employment history or who has not
sought higher education is not "per se" pretextual.
In People v
Hinds (270 AD2d 891 [4th Dept 2001] [Pigott, Jr., P.J. on
panel]), the defendant was charged with second degree murder (see
- 50 -
- 51 id. at 891).
Nos. 184-186 & 204
The People, in striking a prospective juror with
"no significant employment history," stated that "he looked for
jurors with decision-making responsibilities and that this
prospective juror had none" (id. at 891-892).
In affirming the
judgment of conviction, the Appellate Division noted that "[t]he
record reflects that the prosecutor asked the other potential
jurors about their employment histories and job responsibilities.
Under those circumstances, we agree . . . that the prosecutor's
explanation for the challenge was race neutral and was not
pretextual" (id. at 892).
Though one's employment status has no
relation to a second degree murder prosecution, the People
demonstrated a valid line of reasoning in exercising this
particular peremptory challenge (see Miller-El, 537 US at 339).
In Black, our review of the record establishes that the
People employed a general strategy to select primarily educated
jurors with gainful employment or who have had at least a prior
history of employment.
Indeed, of the 12 seated jurors, nine
were currently employed, one had retired after working for 53
years, one was currently in school earning her degree in nursing,
and one was currently unemployed, but had worked as a home health
aide for 22 years.
Similarly, the record reveals that ten of the
12 jurors had completed high school.7
Thus, there is no basis to
conclude that the three stricken jurors were treated disparately
7
In addition, the three alternates selected were all
gainfully employed. Two of them had at least a college
education.
- 51 -
- 52 -
Nos. 184-186 & 204
in relation to the jurors selected by the parties or that race
played any part in their being peremptorily challenged.
On balance, there exists support in the record in Black
for Supreme Court's acceptance of the People's race neutral
reasons and rejection of defense counsel's argument of pretext.
VI.
In Hecker, in light of our decision to reverse and
order a new trial, we need not address whether Supreme Court
properly closed the courtroom to the public during the undercover
officer's trial testimony.
In Guardino, we not only agree with the Appellate
Division that Supreme Court properly ruled on the Batson
challenge and that the evidence adduced at trial was legally
sufficient to sustain a finding of guilt as to the Enterprise
Corruption count, but also agree that Supreme Court properly
instructed the jury during its deliberations and was justified in
denying Guardino's mistrial motions.
In Black, we find no Batson error and the defendant's
remaining contentions, raised in his pro se supplemental brief,
are either unpreserved or without merit.
Accordingly, in Hecker, the order of the Appellate
Division should be reversed and a new trial ordered and in
Guardino, Hollis, and Black, the respective orders of the
Appellate Division should be affirmed.
- 52 -
People v Joseph Hecker, People v Anthony Guardino, People v Eric
Hollis, People v Jamel Black
Nos. 184, 185, 186 and 204
SMITH, J. (concurring in People v Guardino, People v Hollis and
People v Black, and dissenting in People v Hecker):
I join the majority opinion in all these cases except
People v Hecker, in which I dissent.
Before discussing Hecker,
however, I want to add a word about People v Guardino.
- 1 -
- 2 -
Nos. 184, 185, 186 and 204
I
In Guardino defendant asserts, and the People do not
dispute, that African-American women are a "cognizable group" for
Batson purposes -- i.e., that to use peremptory challenges
against prospective jurors because they are African-American
women would be a constitutional violation.
The People do not
challenge this assumption, and the majority opinion accordingly
accepts it.
I have no quarrel with accepting the premise for
purposes of this case, but I want to point out that it is not
obviously correct, though it may seem so.
One might at first think that, if it is
unconstitutional for a prosecutor or defense lawyer to direct
challenges at African-Americans as a group (which it is) or women
as a group (which it is), it must also be impermissible to
challenge African-American women as a group.
counter-argument.
But there is a
The lawyer who challenges African-American
women -- but is perfectly happy to have African-American men, and
white women, on the jury -- cannot be accused of either racism or
sexism.
That lawyer can certainly be accused of a cynical use of
stereotypes -- but a cynical use of stereotypes is a large part
of what lawyers do when they make peremptory challenges (see
Smith, "Nice Work If You Can Get It": "Ethical" Jury Selection in
Criminal Defense, 67 Fordham L Rev 523 [1998]).
It is widely believed, whether true or not, that
certain kinds of jurors -- police officers and their families,
- 2 -
- 3 -
Nos. 184, 185, 186 and 204
members of "helping" professions, doctors, accountants, rich
people, poor people, suburbanites, city-dwellers, the unemployed
-- bring predictable biases to jury service.
As long as such
beliefs are prevalent, lawyers exercising peremptory challenges
will target the groups they think least favorable to their cause.
As to all the groups I have mentioned, this kind of stereotyping
is perfectly legal.
If the group is one defined by race or sex,
Whether a group defined by race and sex is within
it is not.
Batson's protections is an open question -- one we do not decide
today (see United States v Walker, 490 F3d 1282, 1292 n 10 [11th
Cir 2007]).
II
In Hecker, a defense lawyer challenged a prospective
juror about whom the lawyer knew virtually nothing except that
she was Asian.
The lawyer found the prospective juror to be
"extremely austere" and unlikely to be "flexible in her
thinking."
I do not understand how the majority can say, as a
matter of law, that Supreme Court had no basis for finding the
challenge to be racially motivated.
It may not have been, of
course; the lawyer may have deduced austerity and rigidity from
the panel member's posture, or the expression on her face.
Or,
as the majority suggests, the lawyer could simply have been
challenging the people she knew little about -- but then why did
she mention austerity and rigidity at all?
The trial judge was
surely in a better position than we are to guess at what the
- 3 -
- 4 -
Nos. 184, 185, 186 and 204
lawyer was thinking.
In Batson cases, a finding of pretext depends heavily
on the trial judge's observations of demeanor and other
intangible factors, which is why reviewing courts are supposed to
accord great deference to a trial judge's findings on such issues
(Miller-El v Cockerell, 537 US 322, 339 [2003]; People v
Hernandez, 75 NY2d 350, 356 [1990]).
The majority opinion states
this rule, but does not follow it.
The majority also holds that New York law "mandates
automatic reversal" whenever a defense peremptory challenge is
mistakenly denied, even in good faith (majority op at 45).
It
does so despite the recent unanimous holding of the United States
Supreme Court that no such rule is required by the federal
Constitution (Rivera v Illinois, 129 S Ct 1446 [2009]).
The
majority offers no reasoned justification for this holding,
merely relying on pre-Rivera precedents.
I do not believe the majority's automatic-reversal rule
is wise.
It loads the dice against the People.
A defendant, who
need not fear an appeal by the People, can and generally will
vigorously contest any prosecution use of a peremptory challenge
that might raise Batson problems.
But the People will be
reluctant to do the same thing, lest they lead the trial judge
into an error that would upset a conviction.
The rule of
automatic reversal, as the Supreme Court said in Rivera, will
"likely discourage trial courts and prosecutors from policing a
- 4 -
- 5 -
Nos. 184, 185, 186 and 204
criminal defendant's discriminatory use of peremptory challenges"
(129 S Ct at 1455).
For this reason, even if I thought the trial
Judge in Hecker had erred, I would at least consider whether, on
this record, his error warrants reversing Hecker's conviction.
- 5 -
People v Joseph Hecker, People v Anthony Guardino, People v Eric
Hollis, People v Jamel Black
No. 184, 185, 186 & 204
GRAFFEO, J. (concurring in Guardino, Hollis and Black, and
dissenting in Hecker):
I agree that there should be an affirmance in Guardino,
Hollis and Black, and therefore join the majority's analysis of
those cases.
I dissent in Hecker, however, for the reason as
stated by Judge Smith that there is record support for the trial
court's step-three finding of fact that the peremptory challenge
was racially motivated.
I do not join Judge Smith's discussion
of Guardino.
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For Case No. 184: Order reversed and a new trial ordered.
Opinion by Judge Ciparick. Chief Judge Lippman and Judges Pigott
and Jones concur. Judge Smith dissents in an opinion in which
Judge Read concurs. Judge Graffeo dissents in a separate
opinion.
For Case No. 185: Order affirmed. Opinion by Judge Ciparick.
Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and
Jones concur. Judge Smith concurs in a separate opinion in which
Judge Pigott concurs.
For Cases No. 186 and 204: Order affirmed. Opinion by Judge
Ciparick. Chief Judge Lippman and Judges Graffeo, Read, Smith,
Pigott and Jones concur.
Decided November 30, 2010
- 1 -
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