fair cross-section requirement in New York

2004(Taylor v Louisiana, 419 US 522 [1975].) In order to establish a prima facie case for violation of the fair cross-section requirement under the 6th Amendment, the defendant must show: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in rela tion to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process” (Duren v Missouri, 439 US 357, 364 [1979]; se

2002The Court noted that it had never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges, or to require a sitting petit jury — as opposed to a jury panel or venire — to reflect the composition of the community at large (id. [citing Duren v Missouri, 439 US 357, 363-364 ; Taylor v Louisiana, 419 US 522, 538 ; Batson v Kentucky, 476 US 79 , 84-85 n 4]).

1991Assuming arguendo that the defendant satisfied the first two requirements necessary to establish a prima facie violation of the fair cross-section requirement, i.e., that blacks constituted a "distinctive” group in the Nassau County community and that their representation on the venire was not fair and reasonable in relation to their numbers in the community (see, Duren v Missouri, 439 US 357, 364 ; People v Guzman, 60 NY2d 403, 410 , cert denied 466 US 951 ), he nevertheless failed to demonstrate that the underrepresentation was attributable to a systematic exclusion of blacks, that is, that

1989Assuming, arguendo, that the defendant satisfied the first two requirements necessary to establish a prima facie violation of the fair cross section requirement, i.e., that Hispanics constitute a "distinctive” group in the community and that their representation on venires is not fair and reasonable in relation to their numbers in the Westchester community (see, Duren v Missouri, 439 US 357, 364 ; People v Guzman, 60 NY2d 403 , cert denied 466 US 951 ), the defendant nevertheless failed to demonstrate that the underrepresentation was attributable to systematic exclusion, that is, that the unde

2015We reject that analysis, as the exclusion of Brooklyn residents from the Manhattan jury venire cannot establish underrepresentation of a distinctive group in the community because Brooklyn residents do not constitute such a “distinctive group.” In any event, even accepting defendant’s census-based data concerning racial disparities between the counties of New York City, the claim still fails because the relevant comparison is between New York County, where the case was tried, and the City as a whole, given the undisputedly lawful citywide jurisdiction of the centralized narcotics parts (see Pe

2002The Court noted that it had never invoked the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges, or to require a sitting petit jury — as opposed to a jury panel or venire — to reflect the composition of the community at large (id. [citing Duren v Missouri, 439 US 357, 363-364 ; Taylor v Louisiana, 419 US 522, 538 ; Batson v Kentucky, 476 US 79 , 84-85 n 4]).

2002Willis v Zant, 489 US 1059 [“the young”]; United States v McDaniels, 370 F Supp 298, 307 [ED La 1973], affd 509 F2d 825 [5th Cir 1975], cert denied 423 US 857 [“the poor”]; People v Hale, 173 Misc 2d 140 [Sup Ct, Kings County 1997, Tomei, J.] [“the young” and “the poor”]; People v Mateo, 175 Misc 2d 192 [Monroe County Ct 1997, Connell, J.] [“the young” and “the poor”]).

2002Willis v Zant, 489 US 1059 [“the young”]; United States v McDaniels, 370 F Supp 298, 307 [ED La 1973], affd 509 F2d 825 [5th Cir 1975], cert denied 423 US 857 [“the poor”]; People v Hale, 173 Misc 2d 140 [Sup Ct, Kings County 1997, Tomei, J.] [“the young” and “the poor”]; People v Mateo, 175 Misc 2d 192 [Monroe County Ct 1997, Connell, J.] [“the young” and “the poor”]).

2002Underrepresentation resulting from voluntary behavior patterns, unencouraged by state action, does not make out systematic exclusion (see, e.g., Guzman, 60 NY2d at 411 ; People v Cowan, 111 AD2d 343, 344 [2d Dept 1985], lv denied 65 NY2d 978 ; People v Mateo, 175 Misc 2d at 213-214 ; see, also United States v Rioux, 97 F3d at 658 ). 17 Thus, without the need for further disclosure, I conclude that any lack of representativeness on the source lists, or on the merged list compiled from them, does not establish a fair cross-section violation. 18 Volunteers The defendant next maintains that the “e

2002And an equal protection claim demands a showing of purposeful discrimination against members of the underrepresented group — discrimination that will be presumed if the selection procedure “is susceptible of abuse or is not racially neutral” (Castaneda v Partida, 430 US at 494 ; see, also, Duren, 439 US at 368, n 26 ).

2002Willis v Zant, 489 US 1059 [“the young”]; United States v McDaniels, 370 F Supp 298, 307 [ED La 1973], affd 509 F2d 825 [5th Cir 1975], cert denied 423 US 857 [“the poor”]; People v Hale, 173 Misc 2d 140 [Sup Ct, Kings County 1997, Tomei, J.] [“the young” and “the poor”]; People v Mateo, 175 Misc 2d 192 [Monroe County Ct 1997, Connell, J.] [“the young” and “the poor”]).

2002Willis v Zant, 489 US 1059 [“the young”]; United States v McDaniels, 370 F Supp 298, 307 [ED La 1973], affd 509 F2d 825 [5th Cir 1975], cert denied 423 US 857 [“the poor”]; People v Hale, 173 Misc 2d 140 [Sup Ct, Kings County 1997, Tomei, J.] [“the young” and “the poor”]; People v Mateo, 175 Misc 2d 192 [Monroe County Ct 1997, Connell, J.] [“the young” and “the poor”]).

2002If we took the fair cross-section requirement to its logical extreme, it would inappropriately produce a jury composed in part of individuals who have indicated that they cannot and would not follow a judge’s instructions on the law and would undermine the defendant’s right to an impartial jury (see Wainwright v Witt, 469 US 412 , 424 n 5).

1991Assuming arguendo that the defendant satisfied the first two requirements necessary to establish a prima facie violation of the fair cross-section requirement, i.e., that blacks constituted a "distinctive” group in the Nassau County community and that their representation on the venire was not fair and reasonable in relation to their numbers in the community (see, Duren v Missouri, 439 US 357, 364 ; People v Guzman, 60 NY2d 403, 410 , cert denied 466 US 951 ), he nevertheless failed to demonstrate that the underrepresentation was attributable to a systematic exclusion of blacks, that is, that

1988Support for the "possibility” of a fair cross section requirement can be found in the rationale of the Supreme Court in Ballew v Georgia ( 435 US 223 ) and Williams v Florida ( 399 US 78 ).

1988Some courts feel that Lockhart (supra) precludes application of the fair cross section requirement to the petit jurors, and therefore to peremptory challenges of petit jurors (People v Treece, 159 Ill App 3d 397, 111 Ill Dec 66, 511 NE2d 1361 , lv denied 117 Ill 2d 552, 115 Ill Dec 408, 517 NE2d 1094 ; Teague v Lane, 820 F2d 832; Lindsey v Smith, 820 F2d 1137, reh denied 828 F2d 775, petition for cert filed Oct. 3, 1987; United States v Forbes, 816 F2d 1006, 1011, n 8; United States v Thompson, 827 F2d 1254, 1257, n 2, supra).

1988The post -Lockhart ( 476 US 162 , supra) courts are divided.

1988Some courts feel that Lockhart (supra) precludes application of the fair cross section requirement to the petit jurors, and therefore to peremptory challenges of petit jurors (People v Treece, 159 Ill App 3d 397, 111 Ill Dec 66, 511 NE2d 1361 , lv denied 117 Ill 2d 552, 115 Ill Dec 408, 517 NE2d 1094 ; Teague v Lane, 820 F2d 832; Lindsey v Smith, 820 F2d 1137, reh denied 828 F2d 775, petition for cert filed Oct. 3, 1987; United States v Forbes, 816 F2d 1006, 1011, n 8; United States v Thompson, 827 F2d 1254, 1257, n 2, supra).

1987(Supra, at 432; People v Davis, 57 AD2d 1013 [3d Dept 1977]; People v Liberty, 67 AD2d 776, 777 [3d Dept 1979].) As to the fair cross-section claim, defendant is only entitled to a hearing if his motion sufficiently specifies some facts establishing systematic discrimination in the jury selection process.

1987(Duren v Missouri, 439 US 357 [1979]; People v Guzman, 60 NY2d 403 [1983], cert denied 466 US 951 [1984]; People v Parks, 41 NY2d 36 [1976]; People v Liberty, 67 AD2d 776 , supra; People v Davis, 57 AD2d 1013 , supra.) Naked assertions of discriminatory procedures are insufficient.

1982The holding of the Supreme Court in Taylor flowed inexorably from a prior decision of that court {Peters v Kiff, 407 US 493 ).

1981Under the circumstances of this case, even if it could somehow be determined that the jurors who rendered the verdict were, in fact, individually impartial, “that would not dispel the lingering appearance of justice denied” (People v Culhane, 33 NY2d 90, 103 ) in light of the fact that no inquiry was made into the prosecutor’s reasons for his use of peremptory challenges.

1981(Cf. People v Shinkle, 51 NY2d 417 .) Moreover, in the context of this case, it does not appear that the interests underlying the fair cross-section requirement would conflict with the fundamental guarantee of a jury composed of jurors who are individually impartial if those interests were to be effectuated at the petit jury level.