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A black prospective juror who would not assure prosecutors that she could disregard her life experiences as a racial minority was improperly excluded from a criminal jury, an appellate court in New York has found. The Appellate Division, 3rd Department, said Albany County prosecutors failed to meet their burden of establishing a race-neutral reason for the woman’s exclusion from the jury. That juror was among six blacks in the venire, and among four peremptorily stricken by the prosecution. “[T]here is … nothing in the juror’s actual comments to suggest that her particular life experience as an African-American would improperly bias her in favor of defendant or against the prosecution,” the court said in an opinion by Justice Robert S. Rose. People v. Van Hoesen, 11580, was an assault case involving a black defendant. After the prosecutor used peremptories to exclude several minorities from the jury, the defense mounted a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). In response, the prosecutor noted that the juror in question, who stressed that she would decide the case on the facts, indicated that her ethnic background brought a different perspective and that she could not shed her heritage. The defense countered that it was entitled to her perspective. Supreme Court Justice Dan Lamont denied the Batson challenge and the defendant was convicted. Last week, the 3rd Department unanimously reversed. “[T]he prosecutor’s explanation related only to the juror’s race and stereotypical assumption that an African-American perspective would be biased against the prosecution,” Justice Rose wrote, adding that the explanation itself was “facially discriminatory” and that the discrimination violated the defendant’s equal protection rights. Joining Justice Rose were Justices Thomas E. Mercure, Anthony J. Carpinello, Carl J. Mugglin and Anthony T. Kane. Mitch Kessler of Cohoes argued for the defendant. Assistant Albany District Attorney Bradley A. Sherman represented the prosecution. OTHER RULINGS In other rulings last week, the 3rd Department: � Rejected a Batson challenge in a Schenectady case where the prosecution used a peremptory to strike the only black in the venire. Presiding Justice Anthony V. Cardona observed in People v. Colon, 12139, that a Batson challenge can succeed only upon a showing that the prosecutor excluded jurors because of their race. Here, he said, the defense offered nothing except for the fact that the only black in the jury pool was rejected. That is insufficient to implicate the prosecution’s burden of proferring a race-neutral explanation, Presiding Justice Cardona said. Also on the panel were Justices Mercure, Carpinello, Karen K. Peters and Edward O. Spain. Mary Elizabeth Clark, a law intern in the Schenectady County District Attorney’s office, argued for the prosecution. Carl J. Silverstein of Monticello appeared for the defendant. � Toppled a Schenectady County burglary conviction because the prosecutor went too far in denigrating the defendant. People v. Russell, 14022, turned on the defendant’s contention that the prosecutor’s disparaging remarks about his credibility violated his fair trial rights. A unanimous 3rd Department panel agreed with the defendant. Records show that the prosecutor repeatedly characterized Edward Russell’s testimony as “lies” and “tall tale[s],” told the jury that the defendant carried a Bible as a “prop” and claimed that his weeping on the stand was staged. The court said the cumulative affect of those assertions improperly undermined the defendant’s credibility. “It is well settled that a prosecutor may not express personal opinions concerning the credibility of witnesses who testify at trial,” Justice Carpinello wrote for the court. “Here, the prosecutor’s summation was replete with inappropriate remarks.” Kessler appeared for the defendant. First Assistant District Attorney Alfred D. Chapleau of Schenectady argued for the prosecution. � Clarified a timeliness issue concerning common law indemnity brought under the state’s Navigation Law. State v. Speonk Fuel Inc., 92728, resolves a question that has been to the 3rd Department before. It arose from an action brought by the state in 1996 to recover cleanup costs under the Oil Spill Trust Fund. The state sought to recover its costs for cleaning up an oil spill in Suffolk County more than a decade earlier. The parties agreed that the action, as a common-law indemnity, was governed by a six-year statute of limitations. They disagreed on when the statute of limitations period began since the Oil Spill Trust Fund made payments over the span of a decade, some of which occurred more than six years before the state brought this action. Justice Spain, writing for the court, said that in a prior decision in this case the 3rd Department had misapplied the Court of Appeals’ 1984 ruling in State v. Stewart’s Ice Cream Co., 64 NY2d 83. In the prior ruling ( State v. Speonk, 273 AD2d 681, [2000]), the 3rd Department held that so long as the action was commenced timely with regard to the final payment, it was timely for all the payments, even those outside the six-year statutory window. Two years ago, in State v. Ackley, 289 AD2d 812, the court held that only payments within the prior six years were recoverable. “While cognizant that this court’s misapplication of Stewart’s Ice Cream Co. on the accrual issue in our prior decision … represents the law of the case, as a matter of discretion, we concur in Supreme Court’s recognition that [ Ackley] is supervening authority and should be followed in this case,” Justice Spain wrote. He was joined by Justices Carpinello, Rose, Lahtinen and Kane. Assistant Attorney General Edward J. Lindner argued for the state. Nicholas J. Damodeo of Smithtown appeared for Speonk Fuel. � Reversed the trial court and said Albany is not entitled to reimbursement for security services it provided during the trial of four New York City police officers accused of murdering Amadou Diallo. The Diallo matter, a case that drew national attention, was moved from the Bronx to Albany to ensure the defendants of a fair trial. All four officers were acquitted of criminal charges in connection with the shooting of an unarmed immigrant who was apparently mistaken for an armed fugitive. The City of Albany provided heightened security. Supreme Court Justice James B. Canfield of Troy had held the city was entitled under Judiciary Law �39 (b) to reimbursement of $269,806. The 3rd Department reversed in an opinion by Justice Mercure. Justice Mercure said that while “the equities suggest that the City of Albany should be reimbursed for the extraordinary security services” it provided, there is simply no provision for reimbursement of expenses “necessitated by a high profile trial.” Justices Crew, Peters, Rose and Lahtinen agreed. Pedro Morales appeared for the Office of Court Administration. Assistant Albany County Corporation Counsel Tara Brower Wells argued for the city.

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