Opinion
2015-12078. Ind. No. 10254/14.
08-23-2017
The PEOPLE, etc., respondent, v. Christopher BROWN, appellant.
David Louis Cohen, Kew Gardens, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.
David Louis Cohen, Kew Gardens, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered November 9, 2015, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law and the facts, and a new trial is ordered.
The defendant contends that the Supreme Court erred in granting the prosecution's peremptory challenges to two prospective black jurors because the prosecution's race-neutral explanations for challenging those potential jurors were pretextual (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ). During jury selection, the defendant made an application to the court pursuant to Batson v. Kentucky (476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ), arguing that the prosecution was exercising its peremptory challenges in a discriminatory manner against prospective black jurors. The prosecutor proffered an explanation for challenging one of the prospective black jurors at issue, No. 15, citing certain facial expressions made by that prospective juror which led him to believe that the prospective juror would "be more inclined to disbelieve police officers." The prosecutor also proffered an explanation for challenging two of the other prospective black jurors at issue, Nos. 2 and 8, stating that those potential jurors had failed to give satisfactory responses to certain hypothetical questions posed during voir dire. In response, defense counsel argued, among other things, that other prospective jurors who were not black had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered, and that the prosecution had not sought to challenge those prospective jurors.
The Supreme Court determined that the prosecutor's explanation for challenging prospective juror No. 15 was pretextual, and seated her as a juror. However, the court determined that the prosecutor's explanations for challenging prospective jurors Nos. 2 and 8 were not pretextual, and denied the defendant's application with respect to those two prospective jurors.
New York courts apply the three-step test of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 to determine whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason (see People v. Smocum, 99 N.Y.2d 418, 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Jones, 139 A.D.3d 878, 879, 31 N.Y.S.3d 191 ; People v. Carillo, 9 A.D.3d 333, 334, 780 N.Y.S.2d 143 ). "The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges; the second step shifts the burden to the nonmoving party to provide race-neutral reasons for each juror being challenged; and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination" ( People v. Carillo, 9 A.D.3d at 334, 780 N.Y.S.2d 143 ; see People v. Smocum, 99 N.Y.2d at 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Jones, 139 A.D.3d at 879, 31 N.Y.S.3d 191 ).
Here, the record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges (see People v. Allen, 86 N.Y.2d 101, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ), the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual (see People v. Fabregas, 130 A.D.3d 939, 942, 15 N.Y.S.3d 794 ; People v. Bell, 126 A.D.3d 718, 720, 5 N.Y.S.3d 227 ; People v. Hall, 64 A.D.3d 665, 666, 882 N.Y.S.2d 515 ; People v. Morrison, 220 A.D.2d 694, 695, 633 N.Y.S.2d 65 ; see also People v. Hurdle, 99 A.D.3d 943, 944, 952 N.Y.S.2d 297 ). Accordingly, the defendant is entitled to a new trial (see People v. McIndoe, 277 A.D.2d 252, 715 N.Y.S.2d 734 ).
Since there must be a new trial, we reach the defendant's contention that the Supreme Court erred in admitting evidence that the police found $2,120 in cash in his possession when he was arrested. This contention is without merit. Since the defendant was charged with criminal possession of a controlled substance in the third degree under Penal Law § 220.16(1), which requires proof of the intent to sell, the court correctly found that the evidence regarding the defendant's possession of the $2,120 in cash was relevant (see People v. Whaley, 70 A.D.3d 570, 571, 895 N.Y.S.2d 78 ; People v. Leak, 66 A.D.3d 403, 404, 886 N.Y.S.2d 155 ; People v. Rodriguez, 233 A.D.2d 409, 410, 650 N.Y.S.2d 239 ; People v. Strunkey, 221 A.D.2d 387, 633 N.Y.S.2d 353 ; People v. Boomer, 221 A.D.2d 351, 352, 633 N.Y.S.2d 367 ; People v. Charles, 212 A.D.2d 541, 541–542, 622 N.Y.S.2d 329 ; People v. Woodson, 198 A.D.2d 535, 604 N.Y.S.2d 187 ).
Further, as the defendant contends, and the People properly concede, he was incorrectly sentenced as a second felony offender. An out-of-state conviction may be used as a predicate felony conviction where its elements are equivalent to those of a New York felony (see Penal Law § 70.06[1][b][i] ; People v. Jurgins, 26 N.Y.3d 607, 613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ; People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ; People v. Muniz, 74 N.Y.2d 464, 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; People v. Gonzalez, 61 N.Y.2d 586, 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ). The elements of Connecticut General Statute § 53–21(a)(2), under which the defendant was convicted, are not equivalent to those of any New York felony. However, because a new trial is required, we need not consider whether the sentence imposed by the Supreme Court was nevertheless appropriate or was affected by its mistaken belief that the defendant was a predicate felon (see People v. Ballinger, 99 A.D.3d 931, 932, 952 N.Y.S.2d 272 ).
In light of the foregoing, we need not reach the defendant's remaining contention.