People v. Cunningham , 800 N.Y.S.2d 550 ( 2005 )

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 18, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, affirmed.

Upon his conviction for possession with intent to sell narcotics, defendant raises four arguments for reversal: the prosecutor exercised peremptory jury challenges in a racially discriminatory manner; his conviction was against the weight of the evidence; the prosecutor was guilty of misconduct during opening and closing statements; and the court’s adverse inference instruction was an inadequate sanction for lost Rosario material. None of these arguments justify reversal of the conviction.

Defendant makes two distinct arguments on appeal concerning the Batson issue (see Batson v Kentucky, 476 US 79 [1986]). First, he contends that the trial court erred in failing to complete the third step of the Batson inquiry by announcing, after the prosecutor had given his reasons for the strikes, that those reasons were “legitimate race neutral explanations.” We disagree. After the court made the above ruling, defense counsel asked for an opportunity to respond and the court stated, “I don’t think it’s necessary, but if you want to make some type of record, go ahead.” After counsel made his pretext argument as to the four jurors, he concluded: “So I have made my burden, but they haven’t carried those [s¿c], and I ask that each of those four individuals be seated.” The court ruled: “That is denied.”

Although the court’s language suggested that it had already decided that the challenges were proper, the fact remains that defense counsel did have the opportunity to make his pretext arguments, after which the court issued a new ruling denying the Batson motion. Thus, unlike the situation where a defendant is deprived of the opportunity to assert pretext, here the court made two distinct rulings: the first, that the reasons were “legitimate[ly] race neutral,” and the second, that the Batson motion was denied, with the latter constituting an implicit finding of no pretext (see People v Pena, 251 AD2d 26, 34 [1998], lv denied 92 NY2d 929 [1998]; People v Wint, 237 AD2d 195 [1997], lv denied 89 NY2d 1103 [1997]). Even if the court made a premature ruling on pretext, its later ruling, after hearing from defense counsel, effectively constituted a reconsideration and defendant was not prejudiced thereby.

The second Batson issue concerns the court’s rulings on the third step of the Batson inquiry regarding prospective jurors Bihui, St. Fleur, Reid and Brown, who were all African-Americans. With respect to Mr. Bihui, the prosecutor stated: “[H]e seemed to have conflicting feelings about police officers. He said that in some cases he thinks police officers would want to cover their butts during their testimony, which I interpreted as meaning may lie if put to the test . . . .”

In response, defense counsel stated “[s]o what if Mr. Bihui feels, as most reasonable people would, that some people might lie, whether they are police officers or not, to cover their butts, as he put it.” Counsel went on to note that the issue of “good cops and bad cops” had been explored with both panels, and that police officers had to be evaluated on a “case by case basis.”

We see no basis to overrule the trial court’s determination that the reasons given for challenging Bihui were not pretextual. While it is true Bihui stated that he would assess police officers on a “person by person basis,” it was not unreasonable for the prosecutor to be concerned that Bihui’s “cover their butts” statement suggested a more deep-seated mistrust of police officers as witnesses. Contrary to the dissent’s suggestion, the prosecutor was not required to accept the prospective juror’s statements at face value. Indeed, an evaluation of the credibility of the juror’s responses is one of the core purposes of voir dire. A trial court’s determination of no pretext is entitled to great deference on appeal (see People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]) and there is no basis in this record to disturb that finding.

In concluding that the reasons for challenging Bihui were pretextual, the defendant and the dissent rely on comparisons to two jurors, August and Lipton, questioned in the third round of voir dire (i.e., the round after defendant’s Batson motion). However, defendant’s argument based upon these comparisons is unpreserved for appellate review, and we decline to review it in the interest of justice (see People v Allen, 86 NY2d 101, 110-111 [1995] [arguments concerning uneven application of neutral factors must “be fully articulated to the trial court during its factual inquiry”]). Defendant never raised the comparison between Bihui and these two jurors at the Batson hearing (nor could he have, since the third round had not yet occurred). “It is . . . the moving party’s burden to make a record that would support a finding of pretext” (People v Smocum, 99 NY2d 418, 422 [2003]), and the trial court’s Batson determination must be evaluated solely on the record existing at the time the objection is made. Accordingly, since defense counsel never mentioned these two jurors during the Batson hearing (see People v Wainwright, 11 AD3d 242, 244 [2004], lv denied 4 NY3d 749 [2004]; People v Funches, 4 AD3d 206, 207 [2004], lv denied 3 NY3d 640 [2004]), nor had they even been questioned yet, they are irrelevant to this Batson application.^*

As to the second juror, St. Fleur, the prosecutor asserted that he challenged him because “he also had not overwhelming positive interactions with police officers” in connection with an apartment break-in and “he wasn’t apparently satisfied with the response of the police.” In response, defense counsel stated: “St. Fleur . . . may not have had an overwhelming positive police attitude. The same can be said for many of the potential white jurors the DA did not strike.”

Although defendant never compared St. Fleur’s situation to any specific juror at the Batson hearing, on appeal he argues that juror Netzer, a non-African-American questioned in the same round, was similarly situated to St. Fleur in that both had been victims of burglaries and both had been disappointed with the response of the police. While there were some similarities between the two jurors’ situations, there were also some differences in their experiences as well as the tone of their responses (cf. Miller-El v Dretke, 545 US — , 125 S Ct 2317 [2005]). With respect to St. Fleur, the court questioned him about the burglary of his apartment:

“the court: Were you satisfied with the response you got from the police?

“JUROR: NO.

“the court: Okay. Anything about that—

“juror: Just took a report.

“the court: Okay. Anything about that experience that will prevent you from being fair and impartial?

“juror: No.”

With respect to Netzer, the prosecutor questioned him on two separate occasions about his dealings with the police regarding two burglaries and one car break-in:

“prosecutor: And what was—I believe you said you weren’t satisfied with the response by the police? Did they follow-up with you at all?

“juror: No. ...

“prosecutor: And were any of the perpetrators caught?

“juror: No.

“prosecutor: And how did that feel?

“juror: Well, I thought with break-ins to the apartment they were very, very thorough and they seemed to be very interested in helping. But the car.thing, it was a little disappointing. It was kind of an old car, but someone put a traffic ticket on it, but they didn’t know it was stolen, so I thought if they would have connected through cross-reference they would have found the car.”

Based on this record, there was a rational reason to challenge juror St. Fleur, but not Netzer. Netzer had three separate instances of dealing with the police as a crime victim, and was “very, very” satisfied on two of those occasions. While he found the failure to locate his stolen car “a little disappointing,” on balance the prosecutor could fairly conclude that Netzer had a favorable view of the police. In contrast, St. Fleur’s answers regarding the police were curt and unconditional in their disapproval, without any mention of any positive aspects of their work. Although defendant accuses the prosecutor of failing to question St. Fleur as much as Netzer, Netzer’s multiple contacts with the police provided a legitimate reason for doing so. Recognizing again that it is the movant’s burden to demonstrate that the prosecutor’s race-neutral reasons were not merely unsatisfying, but actually were a pretext for discrimination, the trial court’s finding of no pretext as to St. Fleur should not be disturbed.

With respect to juror Reid, the prosecutor challenged her because “she had earlier . . . spoken about two of her nephews were drug addicts and one was in prison . . . [a]nd even though she assured the Court at that point that she can be fair and impartial, I still think it’s a little too close to this case as far as the drug issue is concerned.” In response, defense counsel noted that juror Netzer had a nephew who was imprisoned in Oregon “yet that did not cause the People to seek to strike him,” while at the same time “the fact that Ms. Reid has one or two nephews who have been convicted somehow causes the DA to reject her for that reason.”

Earlier in the voir dire proceeding, Netzer disclosed that he had a nephew who was recently convicted of assault in Oregon or Idaho, but that he knew little about the crime and had only met the nephew a few times. He further stated that he assumed the nephew had been treated fairly because “I think probably he was guilty because he was a very troubled child. ...” Reid, on the other hand, had two nephews who were drug addicts, one of whom was in prison “Upstate.” She further stated that she could put those facts aside and decide the case on the evidence, but did admit that one of her nephews had been beaten by the police.

Despite the fact that both of these jurors had family members that had been convicted of a crime, the fact that Reid had nephews involved in drugs provided an additional, independent basis to challenge her. Notably, the prosecutor specifically relied on the nexus between the nephews’ drug addiction and this drug prosecution in challenging juror Reid, as opposed to the fact that her nephew had been convicted of a crime (as had Netzer’s nephew). Although the dissent faults the prosecutor for not making further inquiry as to Reid’s feelings toward the police, the record discloses precisely such an inquiry after the beating of her nephew was disclosed. There is no basis in the record to discredit the prosecutor’s stated belief that Reid’s impartiality might be compromised since her nephews’ drug addiction was “a little too close to this case.”

Regarding juror Brown, the prosecutor stated that she challenged her because “she said she had two nephews who had been convicted for assault and murder in Bronx and New York County and I believe that her work involves a lot of families with drug problems.” In response, defense counsel noted that after Brown informed the court and counsel of the issues involving her nephews, the prosecutor never questioned her about them and never challenged her for cause. Notably, defense counsel never mentioned the issue of employment-based challenges before the trial court.

The voir dire record discloses that in response to a question from the prosecutor, Brown stated that her work at the Administration for Children’s Services involved removing a child “for neglect or abuse.” The prosecutor then asked, “Are a large percentage of the cases that you deal with involving neglect or abuse? Would you say a large amount of them involv[e] households where there are people with drug problems?” Brown responded, “Some, some, yes.”

Defendant’s argument concerning employment-based challenges is unpreserved for appellate review since it was never raised before the trial court (People v Allen, 86 NY2d at 110-111), and we decline to review it in the interest of justice. If it were reviewed, we would reject it as there is a logical connection between Brown’s work involving persons with drug problems and the prosecutor’s belief that such work might compromise her impartiality in a drug prosecution (People v Funches, 4 AD3d at 207; People v Wint, 237 AD2d at 197-198).

Defendant’s remaining arguments for reversal are likewise without merit. The verdict was not against the weight of the evidence. Issues of credibility, including the weight to be given to any inconsistencies in testimony, were properly considered by the jury, and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94 [1903]). There was nothing implausible about the detective’s account of the drug transaction.

The court’s delivery of an adverse inference instruction to the jury as a result of the People’s loss of a DD5 report was a proper exercise of discretion (see People v Martinez, 71 NY2d 937, 940 [1988]). Preclusion of the undercover officer’s testimony was unwarranted. Although the language of the adverse inference charge mentioned in some of the case law is preferable to the instruction given here (see e.g., People v Davis, 18 AD3d 1016, 1018-1019 [2005]), the charge as a whole adequately sanctioned the People for the loss of Rosario material.

Although several of the prosecutor’s comments in her opening statement and summation strayed from the evidence and, on one occasion, improperly denigrated defense counsel, such comments did not deprive defendant of a fair trial. Concur— Sullivan, Williams and Gonzalez, JJ.

* We also note that defendant could have reasserted, but did not, the Batson objection after the questioning of these two jurors in the third round.