Language-Based Peremptory Strikes Require a Supported Step-Three Batson Determination

1. Introduction

In People v Duplessis, the Third Department reversed Gregory Duplessis’s convictions because the trial court’s rejection of his Batson challenge lacked a sufficient evidentiary foundation. The disputed peremptory strike concerned a prospective juror of color whom the prosecutor described as having “broken English” and struggling to communicate. Both the trial judge and defense counsel had expressly disagreed with that assessment during jury selection.

The central issue was not whether communication difficulties can ever provide a race-neutral reason for excluding a prospective juror. Rather, it was whether the trial court had meaningfully evaluated the credibility of that explanation and supported its finding of nondiscriminatory intent with the record. An earlier appeal had already resulted in remittal for that precise inquiry. The proceedings on remittal did not cure the deficiency.

The decision applies established Batson principles to an especially difficult evidentiary setting: an explanation based on speech characteristics that a written transcript may not capture. Its principal lesson is that deference to a trial court’s credibility determination depends on an actual, record-supported assessment—not merely acceptance of a facially race-neutral explanation.

2. Background and Procedural History

The convictions and first appeal

A jury convicted Duplessis in March 2023 of two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. Schenectady County Court imposed concurrent three-year prison terms, followed by three years of postrelease supervision.

On appeal, Duplessis argued that County Court had improperly denied his Batson challenge. In its earlier decision, reported at 248 AD3d 1419, the Third Department concluded that County Court had failed to determine, at Batson’s third step, whether the prosecution’s stated reason was pretextual. Because that factual question could not be resolved from the existing record, the appellate court withheld decision and remitted the matter for a determination of discriminatory intent.

The disputed jury selection

The trial prosecutor initially exercised peremptory challenges against two prospective jurors of color. Defense counsel objected. As to juror No. 95, the prosecutor claimed that the juror had “broken English” and “struggled to communicate.” The trial judge and defense counsel each stated that they had observed no communication difficulty.

County Court nevertheless denied the challenge without completing the third-step inquiry and issued a warning to the prosecutor. The prosecutor then asked whether he should examine the remaining jurors’ skin color to “make sure [he was] not being racist.” The court advised against doing so, and the prosecutor withdrew the strike against the other prospective juror of color.

Later, the prosecutor struck juror No. 87, also a person of color. In that instance, however, County Court stated that it had experienced “a very difficult time understanding” the juror, and defense counsel agreed that the strike was not based on race. This contrasting episode became important because it showed the difference between a communication concern supported by contemporaneous observations and one those observations expressly contradicted.

The proceedings on remittal

County Court conducted a conference and allowed the parties to present their positions. The judge acknowledged having no independent recollection of the relevant jury selection and proposed relying on the transcripts, personal voir dire notes, and counsel’s representations.

Defense counsel recalled that the trial prosecutor had asked juror No. 95 no questions. A different prosecutor appeared for the People because the trial prosecutor was unavailable. The replacement prosecutor relied on the transcripts rather than personal knowledge, arguing that communication was central to jury service and that the trial prosecutor had detected English-language difficulties.

County Court again denied the Batson challenge. Its findings emphasized that a transcript does not fully convey tone, accent, or manner of communication, but concluded that the record contained neither objective facts showing racial motivation nor similarly situated jurors with comparable communication characteristics who were treated differently.

3. Summary of the Opinion

The Third Department held that County Court’s step-three determination was unsupported by the record. Although trial courts ordinarily receive substantial deference on Batson credibility findings, the reasons for that deference were missing here.

• The trial judge had no independent recollection of the disputed jury selection.
• The judge did not explain what the personal voir dire notes showed.
• The replacement prosecutor had no firsthand knowledge of the strike.
• The trial prosecutor’s file or jury-selection notes were neither produced nor meaningfully explored.
• The contemporaneous record showed that the judge and defense counsel had rejected the claimed communication difficulty.
• The prosecutor had asked juror No. 95 no questions that might have substantiated the explanation.

Accordingly, the trial court was no better positioned than the appellate court to assess the original prosecutor’s credibility. Given the sparse record and the prosecutor’s comments and conduct, accepting the communication explanation would have been speculative.

The court reversed the judgment, on the law, and remitted the matter to Schenectady County Court for a new trial. It characterized the parties’ remaining contentions as academic or without merit.

4. Analysis of the Precedents Cited

People v Smocum: The substance of Batson’s third step

People v Smocum, 99 NY2d 418, 422 (2003), supplied the governing description of the third-step inquiry. That inquiry concerns the credibility of the race-neutral explanation and requires an ultimate determination of discriminatory intent based on all the facts and circumstances.

Its importance here is the distinction between articulating a permissible explanation and establishing that the explanation genuinely motivated the strike. County Court could not complete its task merely by recognizing that communication ability is relevant to jury service.

People v Wright: Deference has a record-based limit

People v Wright, 42 NY3d 708, 715 (2024), explained why trial courts receive great appellate deference: they can observe both prospective jurors and the prosecutor exercising the strikes. It also supplied the controlling limitation—an appellate court may overturn a pretext determination when it finds no support in the record.

The Third Department applied that exception. It did not reject ordinary deference; it found that County Court had not made a supported determination deserving that deference.

People v Hecker: Firsthand observation and a meaningful record

People v Hecker, 15 NY3d 625, 656-657 (2010), cert denied 563 US 947 (2011), reinforced the institutional advantage trial courts normally possess over appellate courts reviewing transcripts. The opinion also cited it when criticizing County Court’s failure to meaningfully assess the prosecutor’s credibility on remittal.

Together, these uses connect deference to its practical foundation. A trial court’s superior position matters only when its observations, recollections, or other reliable evidence actually inform the determination.

People v Cruz: Observations unavailable in a transcript

People v Cruz, 228 AD3d 1019, 1024-1025 (3d Dept 2024), supported both appellate deference and the trial court’s “unique position” to verify matters not clearly established in the appellate record. In People v Duplessis, that principle made record development especially important because accent, cadence, and fluency may disappear when speech is transcribed.

The opinion separately cited People v Cruz, 238 AD3d 1327, 1328-1329 (3d Dept 2025), lv denied 43 NY3d 1054, as contrasting authority near its conclusion. The supplied opinion does not describe that later decision’s facts in detail. Its placement signals that not every challenged Batson determination presents the unsupported record found here.

Foster v Chatman and People v Watson: Documentary evidence and effective review

Foster v Chatman, 578 US 488, 513 (2016), and People v Watson, 169 AD3d 81, 83 (1st Dept 2019), were cited for the potential importance of a prosecutor’s file or jury-selection notes in assessing discriminatory intent. Such materials may be useful, and potentially dispositive, when the original prosecutor is unavailable.

Their relevance was concrete: County Court lacked a recollection, the replacement prosecutor lacked personal knowledge, and potentially informative contemporaneous materials were not offered, requested, or discussed. The court also cited People v Watson, at page 85, in support of reversal and a new trial.

The opinion does not establish an automatic requirement to produce prosecutorial notes in every Batson proceeding. Rather, it identifies the failure to explore them as a significant deficiency in this particular reconstruction of the disputed strike.

People v Hernandez: Language-related explanations require careful scrutiny

People v Hernandez, 75 NY2d 350, 356-357 (1990), affd 500 US 352 (1991), was cited in connection with the need for meaningful findings when language-related characteristics are at issue.

The citation reinforces the importance of evaluating the actual circumstances behind a language-based explanation. The Third Department did not hold that every such explanation is discriminatory. It required a record capable of supporting the finding that the explanation was genuine.

People v Aguirre and People v Colon: Contradictory contemporaneous observations

People v Aguirre, 275 AD2d 418, 418 (2d Dept 2000), lv denied 95 NY2d 960 (2000), and People v Colon, 228 AD2d 609, 609-610 (2d Dept 1996), lv denied 88 NY2d 982 (1996), supported the court’s treatment of the trial judge’s and defense counsel’s express disagreement with the prosecutor’s description.

These citations accompanied the key factual conclusion: nothing in the record otherwise suggested that juror No. 95 had difficulty understanding or answering County Court’s limited questions. People v Colon was also cited in support of the new-trial disposition.

People v Blocker: Speculation cannot support the finding

People v Blocker, 245 AD2d 567, 568 (2d Dept 1997), supported the conclusion that finding a communication difficulty on this record would be speculative. It also supported reversal and remittal for a new trial.

Its role was to mark the boundary between a permissible credibility determination and an unsupported assumption. The possibility that a transcript omitted some speech characteristic did not establish that the prosecutor actually observed that characteristic or relied on it honestly.

People v Morgan: The decision remains fact-sensitive

People v Morgan, 230 AD3d 864, 872 (3d Dept 2024), affd 45 NY3d 940 (2025), appeared as contrasting authority alongside the later People v Cruz decision. The supplied opinion does not elaborate on its underlying facts.

This comparison underscores the limited nature of the holding: the reversal turned on the particular absence of reliable support, not a categorical rejection of trial-court Batson findings or communication-based explanations.

5. The Court’s Legal Reasoning

Facial neutrality is not a finding of credibility

Batson’s second and third steps perform different functions. At step two, the prosecutor’s explanation that juror No. 95 had difficulty communicating was race-neutral on its face. At step three, however, County Court had to decide whether that explanation was credible or instead concealed discriminatory intent.

The court’s reasoning therefore does not rest on treating “broken English” as automatically unlawful. It rests on the absence of a supported finding that the stated concern actually explained this strike.

The contemporaneous record contradicted the explanation

This was not simply a case in which a transcript failed to record an accent. The transcript affirmatively recorded that the trial judge and defense counsel perceived no communication difficulty. The prosecutor’s failure to question juror No. 95 left no additional exchange supporting the claimed concern.

The treatment of juror No. 87 strengthened that contrast: when a genuine difficulty was perceived, the judge expressly identified it, and defense counsel accepted that the strike was not racially motivated. The comparison did not depend on identifying a nonminority juror with identical characteristics. It exposed the lack of support for the asserted characteristic in juror No. 95.

The remittal did not supply the missing credibility assessment

Remittal offered an opportunity to reconstruct the relevant circumstances. Yet the judge’s notes were not explained, the original prosecutor did not participate, and the replacement prosecutor could supply only a transcript-based argument. The original prosecutor’s contemporaneous materials were not explored.

The original prosecutor’s unavailability was not, standing alone, decisive. The problem was the combined absence of firsthand recollection, disclosed contemporaneous observations, and other evidence capable of supporting the credibility finding.

Transcript limitations require evidence, not assumptions

County Court correctly recognized that written transcripts often omit tone, accent, dialect, cadence, and fluency. But that limitation cuts both ways. It explains why appellate courts ordinarily defer to supported trial-court observations; it does not permit a court without recollection to presume that an unrecorded difficulty existed.

The Third Department accordingly required a meaningful foundation for the determination. The prosecutor’s comments and conduct also formed part of the overall circumstances, although the opinion did not treat any single remark as independently dispositive.

6. Potential Impact

• More explicit findings: Trial courts should distinguish facial neutrality from credibility and explain the observations or evidence supporting their step-three decisions.
• Careful treatment of speech-based explanations: Claims involving accent, fluency, or communication call for particular attention because their factual basis may not survive transcription.
• Meaningful remittal proceedings: Repeating a prosecutor’s explanation through an attorney without personal knowledge may not cure an incomplete Batson inquiry.
• Preservation of contemporaneous information: Judicial notes and prosecutorial jury-selection materials may become important when memories fade or participants are unavailable.
• Limits on appellate deference: Deference remains substantial, but it cannot insulate a determination that lacks support in the record.

The opinion does not impose a universal evidentiary checklist, prohibit all language-based strikes, or make comparative-juror evidence the exclusive way to assess discrimination. Its significance lies in requiring a genuine, supported evaluation of intent under the circumstances presented.

7. Complex Concepts Simplified

Peremptory challenge

A means of removing a prospective juror without establishing the grounds required for a challenge for cause. It cannot lawfully be exercised for a racially discriminatory purpose.

Batson’s three-step inquiry

First, the objecting party raises circumstances supporting an inference of discrimination. Second, the striking party gives a race-neutral explanation. Third, the court evaluates the explanation’s credibility and determines whether purposeful discrimination occurred. The ultimate burden of persuasion remains with the party alleging discrimination.

Pretext

An explanation that appears legitimate but is not the real reason for the action.

Voir dire

The questioning of prospective jurors during jury selection.

The “cold record”

The written record reviewed on appeal, without the firsthand experience of hearing and observing the participants.

Appellate deference

The respect an appellate court ordinarily gives findings made by a judge better positioned to assess credibility. It does not require acceptance of unsupported findings.

Remittal

Returning a case to the lower court for further proceedings. Here, the first remittal sought a proper Batson determination; the final remittal required a new trial.

8. Conclusion

People v Duplessis establishes a focused application of existing Batson doctrine: a language-based explanation for a peremptory strike cannot sustain a step-three determination through speculation, particularly when contemporaneous observations contradict it.

The decision’s broader significance is procedural and evidentiary. Trial courts must actually assess credibility and create a meaningful record supporting their determination. Because that did not occur here, even after remittal, the convictions were reversed and a new trial ordered.