People v. Brissett

211 A.D.3d 964

180 N.Y.S.3d 267

The PEOPLE, etc., respondent,

v.Wesley BRISSETT, appellant.

2016–11532

Ind. No. 146/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 3, 2021

December 21, 2022

Patricia Pazner, New York, NY (Tammy E. Linn and David L. Goodwin of counsel; Natalie Smith on the brief), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

MARK C. DILLON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered September 29, 2016, convicting him of criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. By decision and order dated July 14, 2021, this Court remitted the matter to the Supreme Court, Richmond County, to hear and report on the defendant's challenge to the prosecution's exercise of peremptory challenges against three black prospective jurors, and held the appeal in abeyance in the interim (see People v. Brissett, 196 A.D.3d 594, 149 N.Y.S.3d 555 ). The Supreme Court, Richmond County (Ralph J. Porzio, J.), has now filed its report. Justice Dillon has been substituted for former Justice Hinds–Radix (see 22 NYCRR 1250.1 [b]).

ORDERED that the judgment is affirmed.

On appeal, the defendant contends that the Supreme Court erroneously denied his Batson challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) with respect to the prosecution's exercise of peremptory challenges to exclude three black 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" ( People v. Alexander, 168 A.D.3d 755, 755–756, 91 N.Y.S.3d 200 ). "The first step under Batson requires a defendant to make a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose’ " ( People v. Chery, 117 A.D.3d 962, 963, 985 N.Y.S.2d 909, quoting Batson v. Kentucky, 476 U.S. at 94, 106 S.Ct. 1712 ). "Once a defendant has made his or her prima facie showing of discrimination, the inquiry proceeds to the second step, where ‘the burden shifts and the prosecution must come forward with a race-neutral explanation for its challenged peremptory choices’ " ( People v. Hurdle, 99 A.D.3d 943, 943, 952 N.Y.S.2d 297, quoting People v. Childress, 81 N.Y.2d 263, 266, 598 N.Y.S.2d 146, 614 N.E.2d 709 ). "[I]f the prosecution meets its burden, the inference of discrimination is overcome, and the third step of the Batson inquiry requires the court to make ‘an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented’ " ( People v. Hurdle, 99 A.D.3d at 943, 952 N.Y.S.2d 297, quoting People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ).

In a decision and order dated July 14, 2021, this Court determined that the defendant made a prima facie showing of discrimination based upon the prosecution's exercise of peremptory challenges to the three prospective jurors, and thus, the Supreme Court should have proceeded with the second step and, if applicable, the third step of the Batson inquiry with respect to each of the Batson challenges (see People v. Brissett, 196 A.D.3d 594, 597, 149 N.Y.S.3d 555 ). Consequently, this Court held the appeal in abeyance and remitted the matter to the Supreme Court, Richmond County, to hear and report for that purpose ( id. at 597, 149 N.Y.S.3d 555 ).

In a report dated January 14, 2022, made after a hearing, the Supreme Court found that the explanations...