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In a case of first impression, the Court of Appeals ruled on June 3 that a judge may remedy a litigant’s discriminatory use of peremptory juror challenges by requiring the litigant to forfeit the improperly exercised challenges. However, the court also held that in the case before it, the judge’s mistaken belief that the law actually required him to order the forfeiture of the challenges constituted reversible error. “Here, defendant is entitled to a new trial because the trial judge was under a misapprehension that the law required forfeiture and failed to exercise the requisite discretion,” Chief Judge Judith S. Kaye wrote for the unanimous court in People v. Luciano, 78. “As a result, defense counsel exhausted his peremptory challenges before the completion of jury selection.” The court upheld the Appellate Division, First Department’s decision to throw out defendant Ruben Luciano’s conviction for criminal possession of a weapon and his 15-year sentence, and ordered a new trial. In March 2004, Mr. Luciano went on trial for attempted murder, assault and criminal possession of a weapon before a jury in the courtroom of Bronx Supreme Court Justice Michael R. Sonberg ( See Profile). During the first round of jury selection, the defense peremptorily challenged all five female panelists. The prosecution objected to the challenges, pursuant to Batson v. Kentucky, 476 US 79. Justice Sonberg rejected as pretextual two of the defense’s five explanations for its challenges. In addition to seating the two panelists, Justice Sonberg also ruled that the two peremptory challenges were automatically forfeited. The judge explained, “The law is that if you exercise the strikes and you determine them to be having made on a discriminatory basis, you forfeit those rights.” The empaneled jury convicted Mr. Luciano on two weapons charges, and Justice Sonberg sentenced him to concurrent sentences of seven and 15 years. Mr. Luciano appealed, arguing, among other things, that Justice Sonberg’s ruling requiring him to forfeit two of his challenges violated the Criminal Procedure Law mandate that each party “must be allowed” a statutorily prescribed number of challenges. The First Department agreed, reversing the conviction and ordering a new trial. ( NYLJ, Aug. 3, 2007) On June 3, the Court of Appeals affirmed, though on different grounds. It ruled that a judge may order the forfeiture of challenges, but is not, as Justice Sonberg believed, required to do so. “The novel question we confront today is how to remedy an established incident of discrimination” under Batson, Chief Judge Kaye wrote. “More specifically, we must determine whether forfeiting peremptory challenges used in a discriminatory manner is a permissible remedy. On this issue of first impression . . . we hold that it is.” The panel ruled that the Criminal Procedure Law neither requires nor prohibits the forfeiture remedy. Rather, the remedy is a tool that should be left to the discretion of judges. Here, however, in stating that the law required forfeiture, Justice Sonberg did not evince the use of such discretion. The panel upheld the reversal of Mr. Luciano’s conviction. The court emphasized that the use of the forfeiture remedy should be used only rarely. “In holding that forfeiture is a permissible remedy, we note that the free exercise of peremptory challenges is a venerable trial tool that should be denied only in rare circumstances,” the chief judge wrote. “In fashioning the proper remedy, a trial judge may consider, among other factors, whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised,” she said. “While even a single instance of discriminatory conduct may warrant forfeiture, where the finding of discrimination is close, forfeiture may not be an appropriate remedy.” Carol A. Zeldin of the Center for Appellate Litigation represented Mr. Luciano. Ms. Zeldin could not be reached for comment. Jennifer Marinaccio and Stanley R. Kaplan represented the Bronx District Attorney’s Office.

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