ABDUS-SALAAM, J.
This appeal requires us to consider whether skin color of a prospective juror is a cognizable classification upon which a
Batson provides the framework under which courts analyze challenges to peremptory strikes of potential jurors based on alleged discrimination. The Supreme Court of the United States held that "the Equal Protection Clause [of the Fourteenth Amendment] forbids [a] prosecutor to challenge potential jurors solely on account of their race" (476 US at 89). Batson's application has been extended to discrimination on the basis of sex (see J.E.B. v Alabama ex rel. T.B., 511 U.S. 127 [1994]) and ethnicity (see Hernandez v New York, 500 U.S. 352 [1991]). Batson outlines a three-step protocol to be applied when a defendant challenges the use of peremptory strikes during voir dire to exclude potential jurors for pretextual reasons. At Step one, the movant must make a prima facie showing that the peremptory strike was used to discriminate; at step two, if that showing is made, the burden shifts to the opposing party to articulate a non-discriminatory reason for striking the juror; and finally, at step three, the trial court must determine, based on the arguments presented by the parties, whether the proffered reason for the peremptory strike was pretextual and whether the movant has shown purposeful discrimination (see id. at 96-98).
We have adopted Batson under the State Constitution and prohibit discrimination against prospective jurors by either the People or the defense "on the basis of race, gender or any other status that implicates equal protection concerns" (People v Luciano, 10 N.Y.3d 499, 502-503 [2008]; see People v Kern, 75 N.Y.2d 638 [1990]). In this appeal, we are asked to decide whether skin color is a "status that implicates equal protection concerns" (id.).
The Equal Protection Clause of the State Constitution provides:
The separation of "race" and "color" in the Clause indicates that "color" is a distinct classification from "race." Similarly, section 13 of the Civil Rights Law, which prohibits disqualification of a state citizen from jury service on the basis of certain personal characteristics, lists "race" and "color" as distinct classes. Specifically, this provision states that "[n]o citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a grand or petit juror in any court of this state on account of race, creed, color, national origin or sex" (Civil Rights Law § 13 [emphasis added]). These provisions indicate that "color" is a separate and distinct classification from "race." It follows, then, that color has been recognized as a category upon which discriminatory practices have been based, including exclusion from jury service.
Our State Constitution and Civil Rights Law plainly acknowledge that color is a "status that implicates equal protection concerns" (Luciano, 10 NY3d at 503), and therefore a Batson challenge may be based on color. Discrimination on the basis of one's skin color — or colorism — has been well researched and analyzed, demonstrating that "not all colors (or tones) are equal" (Trina Jones, Shades of Brown: The Law of Skin Color, 49 Duke L.J., 1487, 1499 [2000]; see Taunya Lovell Banks, Colorism Among South Asians: Title VII and Skin Tone Discrimination, 14 Wash. U. Global Stud. L. Rev. 665, 671-674 [2015]; Michael Hughes & Bradley R. Hertel, The Significance of Color Remains: A Study of Life Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 68 Soc. Forces 1105, 1116 [1990]). Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity. That is why color must be distinguished from race. Today, we acknowledge color as a classification separate from race for Batson purposes, as it has already been acknowledged by our State Constitution and Civil Rights Law. Making this distinction is necessary to serve the purpose of Batson, which recognized
Recognizing that a Batson challenge may be premised on skin color does not conflict with our holding in People v Smith (81 N.Y.2d 875 [1993]). There, we rejected the defendant's contention that a Batson challenge may be based on the exclusion of "minorities" in general, regardless of race (id. at 876). Using peremptory strikes to exclude "minorities" — a category that includes a vast and varied group of individuals that is subject to change based on census and other demographic data based on population — is quite different from excluding potential jurors because they share a similar skin color. Skin color is generally an immutable characteristic.
When a movant seeks to meet his or her prima facie burden of demonstrating that a peremptory strike was used to discriminate by showing that multiple members of a cognizable group were excluded, the movant may meet the prima facie burden by demonstrating that the perempted potential jurors have a similar skin color, for example, dark-colored as was alleged here.
In cases where the People or a defendant makes a Batson challenge on the basis of color, it is for the trial court, using the existing Batson protocol, to decide whether the individuals identified as part of that group share a similar skin color, in the same way the trial court makes determinations about race, gender, and ethnicity classifications. It is within this framework that we analyze the Batson challenge in the case before us.
Defendant, a dark-complexioned African-American male, along with several other individuals, was involved in a robbery in Queens. As a result, defendant was charged with one count of robbery in the first degree and two counts of robbery in the second degree. During voir dire, the prosecutor used peremptory challenges to exclude a number of potential jurors. One of those jurors, the subject of this appeal, was a dark-complexioned Indian-American woman. Defense counsel lodged a Batson challenge as to five of the prosecutor's peremptory strikes, stating: "The district attorney has now perempted all the female black women and I don't believe that there are valid reasons other than their face and their gender that they have been challenged." Defense counsel specified that she was referring to "[t]he black or dark-colored [women]," noting that "the Guyanese women [were] included in that" group. The People responded "Well, Judge, we are either going to do Guyanese or African American, can't do black or skin color, Judge. But I have reasons for everybody." The trial judge did not make a step one finding. The prosecutor, however, immediately proceeded to supply reasons for four of the excluded potential jurors. When it came to the juror at issue, the prosecutor stated: "I'm trying to remember why I got rid of her," but
As an initial matter, we reject defendant's argument that the issue of whether he made out a prima facie case of discrimination at step one of the Batson protocol is moot and should not be revisited on appeal because the court moved past that threshold inquiry. In Hernandez v New York, the Supreme Court of the United States held that whether the movant on a Batson challenge made a prima facie showing of discrimination becomes moot when the opposing party presents a non-discriminatory reason for the use of a peremptory strike "and the trial court has ruled on the ultimate question of intentional discrimination" (500 U.S. 352, 359 [1991]). We have adopted that mootness framework, holding in People v Payne that we need not review the prima facie showing made at step one "because the subsequent rulings by the trial courts ... on the ultimate issue of purposeful discrimination and pretext moot this first-step issue" (88 N.Y.2d 172, 182 [1996]; see People v Smocum, 99 N.Y.2d 418, 423 [2003] [holding that "(the) issue became moot when the People stated their reasons and the court ruled on the ultimate issue"]). We recently reiterated this proposition in People v Hecker, where we held that "[o]nce a party has placed its [non-discriminatory] reasons on the record... the sufficiency of the prima facie showing becomes moot" (15 N.Y.3d 625, 652 [2010] [internal quotation marks omitted], citing Hernandez, 500 US at 359, and Smocum, 99 NY2d at 423).
Defendant argues that "contrary to the People's position, dark skin color is a cognizable class and, indeed, must be one unless the established protections of Batson are to be eviscerated by allowing challenges based on skin color to serve as a proxy for those based on race." We agree with defendant. By arguing that the prosecutor used five of his peremptory strikes to exclude black or dark-colored women, which encompassed the juror at issue here, defendant made a prima facie showing that the People were allegedly discriminating against dark-colored women, thus satisfying step one of the Batson protocol (see 476 US at 96-97).
At step two of the Batson protocol, the prosecutor was required to provide a non-discriminatory reason for perempting the juror at issue. Defendant contends that the juror should have been seated when the prosecutor could not recall why he struck her. It is clear from the record that the prosecutor failed to provide a reason for why he excluded the juror, stating he could not recall. The prosecutor's failure to give a specified reason for why the juror was perempted fails to satisfy the step two requirement. Batson's burden shifting framework requires the nonmovant, here the People, to come forward with some non-discriminatory reason for striking each juror, which the prosecutor fails to do when she or he provides no reason at all. Consistent with this analysis, when faced with this circumstance, the Appellate Division Departments have held that a failure to recall is insufficient to satisfy step two of Batson (see People v Wilson, 73 A.D.3d 606, 607-608 [1st Dept 2010]; People v Dove, 172 A.D.2d 768, 768-769 [2d Dept 1991], lv denied 78 N.Y.2d 1075 [1991]; People v Bozella, 161 A.D.2d 775, 775-776 [2d Dept 1990]). Thus, the prosecutor's failure to recall why he struck the juror was insufficient to meet his burden at step two. Despite this failure, the trial court did not seat the juror at issue. We hold that because defense counsel met her prima facie burden by alleging that the prosecutor was excluding
Defendant's additional argument that the evidence presented by the People was insufficient to convict him of first-degree robbery is unpreserved for our review. Because the courts below erred in holding that defendant failed to meet his prima facie burden under Batson, defendant must be retried, and therefore, we do not reach defendant's remaining argument. Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.
GARCIA, J. (concurring).
I agree with the majority that reversal and a new trial are warranted in this case. I write separately because application of our well-established mootness doctrine precludes us from revisiting whether defendant met his step-one burden of identifying a pattern of discrimination against a cognizable group. It is therefore unnecessary to reach the issue of whether "skin color of a prospective juror is a cognizable classification" for purposes of a Batson challenge (majority op at 570).
The Supreme Court in Batson set forth a three-step process for determining whether peremptory strikes are racially discriminatory (Batson v Kentucky, 476 U.S. 79, 96-98 [1986]). Step one requires two elements to make a prima facie showing of race discrimination: the moving party must demonstrate (1) that members of a cognizable racial group have been excluded from the jury, and (2) that "facts and other relevant circumstances" support an inference of impermissible discrimination (People v Childress, 81 N.Y.2d 263, 266 [1993]).
After the moving party has established a prima facie showing, the burden shifts to the nonmoving party to provide a race-neutral explanation for its challenged peremptory choices (Batson, 476 US at 96-97). At step three, the trial court determines whether the defendant has shown purposeful discrimination and consequently, whether or not to seat the challenged juror (id. at 98).
Twenty-five years ago, the Supreme Court first applied the mootness doctrine in the Batson context by declining to review
This Court has adopted the mootness doctrine as an integral part of our Batson jurisprudence. Once a party has proffered a race-neutral reason on the record, the sufficiency of the prima facie showing becomes moot (see People v Hecker, 15 N.Y.3d 625, 652 [2010], citing People v James, 99 N.Y.2d 264, 270 [2002]; People v Smocum, 99 N.Y.2d 418, 422 [2003]; People v Payne, 88 N.Y.2d 172, 182 [1996]).
In People v Payne and its companion cases involving "reverse Batson" challenges, the defendants argued that the trial courts erred at step one in concluding that the prosecution had "shown a prima facie case of discrimination merely by noting that all of the challenged jurors were white" (88 NY2d at 181-182). This Court did not address or resolve whether white prospective jurors constituted a cognizable group or whether the striking of white jurors raised an inference of discrimination because the trial courts' subsequent rulings "on the ultimate issue of purposeful discrimination and pretext moot this first-step issue" (id.). Similarly, in People v Hecker and its companion case, People v Black, we did not review whether the defendants met their prima facie burden because "[o]nce a party has placed its race-neutral reasons on the record," step one "becomes `moot'" (People v Hecker, 15 N.Y.3d 625, 652 [2010] [citations omitted]; see also id. at 666-667 [Smith, J., concurring in People v Black and dissenting in People v Hecker]).
There are sound policy reasons for our strict adherence to the mootness doctrine. We have explained that, "to revisit the adequacy of the step one showing unnecessarily evades the
Today, in reaching the merits of step one, the majority abandons this well-established policy.
In this case, defendant raised an initial Batson challenge, asserting that "[t]he district attorney has now perempted [sic] all the female black women and I don't believe there are valid reasons other than their face [sic] and their gender that they have been challenged." The prosecutor immediately asked the trial court if he could respond and, upon the court's approval, sought defendant's clarification as to which specific women he was challenging. Defendant specified, "the black or dark-colored, the Guyanese women that are included in that." The prosecutor objected to the group classification stating: "Judge, we are either going to do Guyanese or African American, can't do black or skin color." Ultimately, the purported cognizable group apparently included four African-American women and a fifth female juror — the relevant juror in the instant appeal. It is apparent that the court and the parties all believed this juror was Guyanese when, in fact, her juror questionnaire indicates that she was born in India.
Notably absent from the record is any ruling by the trial court regarding the contours of the "cognizable class" or which particular jurors should be included within it. Rather, as the majority makes clear, the prosecutor moved past step one and plunged forward into step two, without any ruling from the trial court regarding whether the purported group of jurors did (or did not) constitute a cognizable class (see majority op at 574).
At step two, the prosecutor began by claiming, "I have reasons for everybody." The People then set forth race-neutral reasons for striking the four African-American women. With regard to the fifth juror — the juror now at issue — the prosecutor
Despite "trying to remember why [he] got rid of [the disputed juror]," the prosecutor never provided any race-neutral reason — or indeed any reason — for striking her from the panel. It is beyond dispute that a prosecutor may not rebut the defendant's case by "merely ... denying that he had a discriminatory motive" (Batson, 476 US at 98), yet the trial court accepted the People's strikes as to four of the challenged jurors, including the juror now at issue.
Accordingly, the trial court's failure to seat this juror was error and our mootness doctrine precludes us from revisiting step one of the Batson protocol.
In a reformulation of our mootness doctrine, the majority asserts that mootness is inapplicable because the court did not make an "ultimate determination" regarding the juror at issue (majority op at 575-576 n 2). Even if this was a correct application of our mootness doctrine — and it is not
Having disregarded our mootness doctrine, the majority dramatically expands our Batson jurisprudence beyond what any court has done before (see e.g. People v Davis, 46 Cal.4th 539, 583, 208 P.3d 78, 116 [2009] [rejecting "(a)t the outset" defendant's claim that "people of color" can be a cognizable group]; Gray v Brady, 592 F.3d 296, 302 [1st Cir 2010] [holding that "minorities" cannot constitute a cognizable group under Batson]). Indeed, only the Second Circuit has recognized that distinct racial and ethnic groups may be combined for Batson purposes, but notably, that court did not rule that "dark skinned" could be its own cognizable group (see Green v Travis, 414 F.3d 288, 297 [2d Cir 2005]). In People v Smith, this Court "reject[ed] appellant's argument that, regardless of race, `minorities' in general constitute a cognizable racial group" (81 N.Y.2d 875, 876 [1993]).
The majority chooses this case — a case with a garbled record at a moot stage of the proceeding — to hold that "skin color" is a cognizable class for purposes of Batson. Such a monumental ruling should occur only after careful consideration, and on a record that properly presents the issue and contains a step one ruling for our review. Instead, the majority announces its holding without the benefit of a call for amicus briefing and without any discussion of the wide-ranging ramifications of its decision in the Batson context and beyond. Moreover, the only "guidance" offered to trial courts is that they should somehow "decide whether the individuals identified ... share a similar skin color" (majority op at 574). The majority's vague assurance that these determinations can be made "in the same way" they are made "about race, gender, and ethnicity classifications" supplies little concrete or practical instruction for lower courts tasked with creating a record that allows for meaningful appellate review (majority op at 574).
In this case, the People failed to provide a race-neutral reason for striking the juror at issue and, accordingly, the trial court erred by failing to seat her. Our analysis should begin and end at that.
Order reversed and a new trial ordered.