People v. Burroughs

Motion for re-argument denied. Memorandum: The People have moved for reargument with respect to our reversal in People v Burroughs (295 AD2d 959) of the judgment convicting defendant of three counts each of forgery in the second degree (Penal Law § 170.10 [1]) and petit larceny (§ 155.25), and one count of criminal possession of stolen property in the fourth degree (§ 165.45 [2]). We agreed with defendant that reversal was required on the ground that the prosecutor’s explanation for exercising a peremptory challenge with respect to the only black prospective juror was pretextual. The prosecutor had explained that “she exercised the peremptory challenge because the age of the prospective juror was a concern to her and she would like a more mature person with ‘real life’ experience” (Burroughs, 295 AD2d 959). In reversing, we wrote that “the fact that the prospective juror was 38 years old bore no rela 970 tionship to the facts of the case. Further, the prosecutor did not ask the age of other prospective jurors and, indeed, opposed defense counsel’s peremptory challenge to a 29-year-old woman” (id.). In seeking reargument, the People contend that we overlooked the decision of the Court of Appeals in People v Childress (81 NY2d 263), and they further contend that the record contains no reference to a 29-year-old prospective juror. We deny the People’s motion. “ ‘Once a prosecutor * * * has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant * * * had made a prima facie showing becomes moot’ ” (People v Payne, 88 NY2d 172, 182, quoting Hernandez v New York, 500 US 352, 359). Thus, the People’s contention that this Court overlooked the principle in Childress concerning the preliminary issue of a defendant’s prima facie showing is without merit. Further, pages 150 and 187 of the trial transcript indicate that the prosecutor opposed defense counsel’s exercise of a peremptory challenge with respect to a 29-year-old prospective juror. Present — Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.