State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2015 106000 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL GRAFTON, Also Known

as MURDA,

Appellant.

________________________________

Calendar Date: September 10, 2015

Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.

__________

Mitch Kessler, Cohoes, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H.

Willis of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from a judgment of the County Court of Schenectady

County (Giardino, J.), rendered May 17, 2013, upon a verdict

convicting defendant of the crimes of attempted assault in the

first degree and criminal possession of a weapon in the second

degree (two counts).

Defendant and Rome Halliburton (also known as Calvin Jones)

allegedly exchanged multiple gun shots on a street in the City of

Schenectady, Schenectady County. Defendant and Halliburton's

brother, Winston Halliburton, received nonfatal gunshot wounds

during the incident. Defendant was charged in a multi-count

indictment and a jury trial ensued. The jury was unable to reach

a verdict on one count and acquitted defendant on two other
-2- 106000 

counts, but he was found guilty of one count of attempted assault

in the first degree and two counts of criminal possession of a

weapon in the second degree. He was sentenced to concurrent

prison terms of 15 years, together with postrelease supervision,

and now appeals.

Defendant, who is black, contends that the People violated

his equal protection rights under Batson v Kentucky (476 US 79

[1986]) by using peremptory challenges to remove the two nonwhite

members of the jury panel, resulting in an all white jury.1

A Batson challenge implicates a three-step process in which,

"[a]t step one, 'the moving party bears the burden of

establishing a prima facie case of discrimination in the exercise

of peremptory challenges'" (People v Hecker, 15 NY3d 625, 634

[2010], cert denied ___ US ___, 131 S Ct 2117 [2011], quoting

People v Smocum, 99 NY2d 418, 420 [2003]). "Once a prima facie

showing of discrimination is made, the nonmovant must come

forward with a race-neutral explanation for each challenged

peremptory – step two" (People v Smocum, 99 NY2d at 422). The

explanation at step two is "not required to be 'persuasive, or

even plausible'; as long as the reasons for the challenges are

'facially neutral,' even 'ill-founded' reasons will suffice"

(People v Lee, 80 AD3d 877, 879 [2011], lvs denied 16 NY3d 832,

833, 834 [2011], quoting People v Payne, 88 NY2d 172, 183

[1996]), and determining whether the step two explanation is

adequate is "a question of law" (People v Allen, 86 NY2d 101, 109

[1995]). If the nonmoving party provides an adequate

explanation, "the burden then shifts back, at step three, to the

moving party to persuade the court that reasons are merely a

pretext for intentional discrimination" (People v Hecker, 15 NY3d

at 656 [internal quotation marks, brackets and citation

omitted]). This step is a factual issue in which the trial court

has broad discretion in determining credibility (see id.; People

v James, 99 NY2d 264, 271 [2002]; People v Knowles, 79 AD3d 16,

1 Other nonwhite jurors were in the jury pool, but they

were removed for cause. Of the two nonwhite jurors removed by

the People's peremptory challenges, one juror (No. 19) was black,

whereas the other (No. 127) was described as not Caucasion, not

black and ostensibly was Asian American.
-3- 106000 

21 [2010], lv denied 16 NY3d 896 [2011]; see also Miller-El v

Cockrell, 537 US 322, 339 [2003]). 

Initially, we note that the Batson application, made before

the end of jury selection, was timely (see People v Thomas, 92

AD3d 1084, 1085 [2012]) and any issue regarding the sufficiency

of defendant's step one showing is now moot since the People

offered step two race neutral reasons for the challenged

peremptory challenges (see People v James, 99 NY2d at 270). The

reasons offered by the People included, as to juror No. 19, that

the father of her children had been prosecuted by the Schenectady

County District Attorney's office for robbery and "presumably"

was in prison. Regarding juror No. 127, the People explained in

some detail that there were jurors after her that they preferred

to use to fill the twelfth and final seat. Although these

reasons were facially race-neutral satisfying the People's step

two burden, defendant points out that the People's statement

regarding juror No. 19 had significant factual errors

embellishing on her actual comment,2 and also that the People did

not challenge a white juror whose sister had "been in and out of

trouble for years, felonies, in trouble with the law." As such,

there were important factual issues implicating credibility that

needed to be resolved at step three. However, as conceded by the

People in their brief on appeal, County Court ruled on the Batson

application at the conclusion of step two.

The improper compressing of a Batson inquiry does not

necessarily mandate reversal, as the movant must preserve the

issue as to whether a meaningful step three inquiry occurred (see

People v Smocum, 99 NY2d at 423; People v Coleman, 5 AD3d 1074,

1075 [2004], lv denied 3 NY3d 638 [2004]). Indeed, whatever

procedural problems may exist in a Batson inquiry, the overriding

concern is that a properly preserved question regarding the

2 The juror did not state that the prosecution had occurred

in Schenectady County. She also did not relate any disposition

of the charge nor did she indicate that the man was the father of

both of her children. She simply stated that three years earlier

her "daughter's father was charged with robbery in the second

degree," and added that he was treated "fair[ly]." 
-4- 106000 

ultimate issue of discrimination is meaningfully addressed (see

People v Smocum, 99 NY2d at 423). Here, defendant sufficiently

preserved the issue and the ultimate issue was not adequately

addressed. After the People offered their race neutral reasons

as to the second relevant juror, defendant began to respond and

urged that the record was not complete. County Court stated that

the record was complete and summarily denied defendant's Batson

challenge. "[T]he court did not appear to give any consideration

to pretext, nor was the basis of its ruling reflected in the

record" (People v Tucker, 256 AD2d 1019, 1020 [1998]). 

In summary, relevant circumstances here include: the

compressing of the Batson inquiry; the People's acknowledgment

that the Batson ruling was made prematurely after step two;

defendant's preservation of the issue as to the lack of a step

three factual determination regarding pretext; and the existence

of factual issues at step three as exemplified by, among other

things, the incorrect characterization of juror No. 19's

statement and the lack of explanation regarding accepting a white

juror with similar circumstances as those found objectionable in

a black juror. Additionally, the retirement of the trial judge

is a factor that makes remittal to properly address the

unanswered factual and credibility issues implicated in step

three difficult (see People v Scott, 70 NY2d 420, 426 [1987]). 

Under all the circumstances, we are persuaded that reversal is

required.

Although the remaining issues are academic, since there

must be a new trial, we briefly note our concern about the

People's extensive use of defendant's street name "Murda," as

well as the introduction at trial of evidence inconsistent with

the pretrial Ventimiglia/Molineux ruling. 

Garry, Lynch and Devine, JJ., concur.
-5- 106000 

ORDERED that the judgment is reversed, on the law, and

matter remitted to the County Court of Schenectady County for a

new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court