Ethics Bulletin 2nd Quarter 2017 (June 21, 2017)


Brady/Giglio/Rosario & Other Discovery Issues

First Department

Joel Farez, 2017 NY Slip Op 04041 (5/18/17) – Reversal where “Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party. Furthermore, as we have stated, where there is evidence raising the possibility of a ‘police motive to fabricate’, cross-examination of police witnesses is ‘highly relevant.’ Thus, Supreme Court’s errors deprived defendant of his right to present a defense. As there was ‘a reasonable possibility that the non-disclosure materially contributed to the result of the trial’ (CPL 240.75), Supreme Court’s errors were not ‘harmless beyond a reasonable doubt'” (internal citations and quotations omitted).

Second Department

People v Bisnauth, 2017 NY Slip Op 02807 (4/12/17) – Affirmed the trial court’s denial of defendant’s CPL 440.10 motion to vacate his murder conviction. “There was no reasonable possibility that [the People’s failure to disclose that a prosecution witness had been a police informant] affected the outcome of the trial [citing to, e.g., People v Fuentes, 12 NY3d 259, 263 (2009); People v Benloss, 117 AD3d 1071 (2d Dept 2014)].

People v Barnette, 2017 NY Slip Op 04130 (5/24/17) – The People had not given notice, within 15 days of arraignment as required by CPL § 710.30(2), of their intent to to use post-arrest statements Barnette made to a detective. “The People failed to show good cause for the late notice, and a lack of prejudice is not a substitute for a demonstration of good cause [see People v Lopez, 84 NY2d 425, 428 (1994); People v O’Doherty, 70 NY2d 479, 486-488 (1987)].” Consequently, the prosecutor should not have been permitted to introduce the statements at trial. CPL 710.30(3); also see, e.g., People v Chase, 85 NY2d 493 (1995); People v Boone, 98 AD3d 629 (2d Dept 2012).
But, the Second Department concluded, the error was harmless: “the evidence of the defendant’s guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the admission of the defendant’s statements to the detective might have contributed to the defendant’s conviction, the error was harmless beyond a reasonable doubt [citations omitted].”

People v Davidson, 2017 NY Slip Op 04137 (5/24/17) – Following a hearing on Davidson’s CPL § 440.10 motion, the court “concluded that the defendant failed to prove by a preponderance of the evidence either that Alston lied at the trial about his plea agreement, or that there was any understanding or agreement between Alston and the prosecution at that time regarding a possibility that the plea would change. The court credited the testimony of the prosecutor and Alston to the effect, inter alia, that the prosecutor did not decide to request a change in the plea agreement until months after the defendant’s trial, and that Alston was not aware of that decision at the time he testified. [T]here is nothing in the record that would warrant disturbing that determination [see People v King, 79 AD2d 992 (2d Dept 1981)].”

People v Dotsenko, 2017 NY Slip Op 04139 (5/24/17) – Upheld the trial court’s denial of defendant’s CPL 440.10 motion: the People “did not commit a Brady violation…by failing to turn over the transcript of the plea proceeding of her accomplice [see People v Rivera, 82 AD3d 1590 (4th Dept 2011); People v Singleton, 1 AD3d 1020 (4th Dept 2003)]. Moreover, that transcript did not constitute newly discovered evidence [see People v Backus, 129 AD3d 1621, 1623 (4th Dept 2015)].”

Fourth Department

People v Bloom, 2017 N.Y. Slip Op. 03279 (4/28/17) – Defendant failed to demonstrate that his underlying contention would be meritorious because he failed to establish that there was a “reasonable possibility” that the officer’s personal interview notes would have changed the result of the proceedings (CPL 240.75)

People v Thibodeau, 2017 NY Slip Op 04577 (6/9/17) – Defendant appealed from an order denying, after a hearing, his CPL 440.10 motion seeking to vacate a judgment convicting him upon a jury verdict of kidnapping in the first degree (Penal Law § 135.25[3] ). The court rejected defendant’s contention that the court erred in denying that part of his motion alleging a Brady violation. It found that the record supports the lower court’s determination that defendant failed to establish that the CI information was suppressed by the People. The conflicting testimony of defendant’s trial counsel and the trial prosecutor with respect to whether the CI information was disclosed, as well as the competing inferences to be drawn from documentary and other evidence bearing on the issue, presented an issue of credibility that the court was entitled to resolve in favor of the People.

Grand Jury

Second Department

People v Tunit, 2017 NY Slip Op 03201 (4/26/17) – On Tunit’s appeal from her trial conviction of Grand Larceny 2°, the Second Department reversed the conviction and dismissed the indictment, without prejudice to a re-presentment by the People to another Grand Jury. This action was taken by the App. Div. court in exercise of its interest of justice jurisdiction, for the specific challenge — that the grand jurors should have been instructed on the definition of joint or common owner and the defense of claim of right — had not been preserved for appellate review (the pretrial motion to dismiss the indictment was a general one, i.e., that the legal instructions to the grand jury were legally insufficient and the indictment’s charges were not supported by legally sufficient evidence).

“Viewing the evidence before the grand jury in the light most favorable to the defendant [see People v Padgett, 60 NY2d 142, 144-145 (1983)], we find that there was a reasonable view of the evidence warranting instructions on the definition of joint or common owner and the defense of claim of right. Penal Law § 155.00(5) provides that “[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.” Consequently, a partner may not be charged with stealing the partnership’s assets from another partner [see People v Zinke, 76 NY2d 8, 13 (1990]. Pursuant to Penal Law § 155.15(1) “[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith.” The defendant’s grand jury testimony indicated that [her] relationship with the complaining witness was that of a partner, not an employee [see generally People v Moscato, 251 AD2d 352, 352-353 (2d Dept 1998)], and that the defendant took the funds at issue under a claim of right (see People v Zona, 14 NY3d 488, 492-493 (2010)]. Consequently, the…failure to instruct the grand jury with respect to the definition of joint or common owner and the defense of claim of right so substantially impaired the integrity of the proceedings as to require the dismissal of the indictment [citing to, inter alia, CPL 210.35(3); People v Caracciola, 78 NY2d 1021, 1022 (1991); People v Valles, 62 NY2d 36, 38 (1984)].”

Fourth Department

People v Smith, 2017 NY Slip Op 03657 (5/5/2017) – Because the evidence was legally sufficient to support the conviction, defendant is precluded from challenging on appeal the instructions the prosecutor gave to the grand jury. In any event, the failure of the prosecutor to instruct the grand jury that the testimony of the accomplices required corroboration did not impair the integrity of the grand jury (see CPL 210.35[5] ), inasmuch as the testimony of the accomplices was corroborated by defendant’s admission of culpability to a nonparticipant.

Voir Dire

Fourth Department

People v Hayward-Crawford, 2017 NY Slip Op 04581 (6/9/17) – During jury selection, the prosecutor improperly inquired if defendant “look [ed] like an arsonist” because she was dressed in red-colored clothing.

Opening

Third Department

People v Kalina, 2017 NY Slip Op 02845 (4/13/17) – In affirming Kalina’s trial convictions of predatory sexual assault against a child & 1st degree incest, the Third Department rejected his contention that the prosecutor’s opening constituted reversible error. “[T]he People provided a narrative of the underlying charges and the proof that would be submitted in support thereof [see People v Manchester, 123 AD3d 1285, 1288 (3rd Dept 2014)], and the prosecutor’s isolated comment that the jury should ‘pay particular attention’ to how the victim was treated on the stand during cross-examination by defense counsel, while improper, did not operate to deprive defendant of a fair trial [citation omitted].”

Direct

Court of Appeals

People v Valentin, 2017 NY Slip Op 03444 (5/2/17) – The Court rejected Valentin’s claim that because his would-be agency defense was premised solely on portions of the People’s case, the prosecutor should not have been permitted to introduce, under People v Molineux, 168 NY 264 (1901), evidence of Valentin’s 1997 drug sale conviction.

“‘[T]he agency charge [is] reserved for cases where there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer’ [People v Argibay, 45 NY2d 45, 53 (1978)]. As [the] defendant bears no burden of proof in advancing this defense [see People v Roche, 45 NY2d 78, 85-86 (1978)], it is immaterial whether a defendant testifies or presents defense witnesses in support of the agency defense or, as with the circumstances here, a defendant requests the agency charge based solely on inferences which arguably may be drawn from the People’s case-in-chief. In both scenarios, the trial court may entertain a Molineux application as to a defendant’s prior drug sale conviction and determine whether the evidence is more probative than prejudicial on the disputed issue of defendant’s intent to sell.
On this record, defendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People’s witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant’s [many prior drug-related] prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant’s prior drug sale conviction on the issue of intent in their case-in-chief.”

Second Department

People v Iwanczyk, 2017 NY Slip Op 04460 (6/7/2017) – “The defendant’s contention that the prosecutor improperly elicited inferential hearsay testimony from a police detective, which bolstered the complainant’s testimony, is without merit. The detective’s descriptions of a ‘walk-through’ of the crime scene and where specific items relevant to the crime were found were properly admitted for the relevant, nonhearsay purpose of ‘establishing the reasons behind’ the detective’s actions, and ‘to complete the narrative of events leading to the defendant’s arrest [People v Ragsdale, 68 AD3d 897, 897-898 (2d Dept 2009); cf. People v Rosario, 100 AD3d 660 (2d Dept 2012)].”

Third Department

People v Iovino, 2017 NY Slip Op 03080 (4/20/17) – Holding that it was permissible for People to elicit testimony concerning an uncharged larceny committed by Iovino immediately before the high speed auto chase & his apprehension, which culminated in the assault upon the police investigator that was the subject of the indictment. Because the theft from Home Depot was “necessary background and also essentially interwoven with the proof that the investigator was performing a lawful duty in arresting defendant, Supreme Court did not abuse its discretion in permitting the People to present proof on that issue [see People v Malloy, 124 AD3d 1150, 1152 (3rd Dept 2015)].”

People v Johnson, 2017 NY Slip Op 03804 (5/11/17) – Third Department agreed that the trial prosecutor

  • should not have elicited testimony from the State Police investigator that, after waiving his Miranda rights, Johnson “willingly answered a series of questions about various topics,” but when asked if he had punched the State Police trooper (who had pulled him over for making an illegal lane change on the Thruway), defendant clammed up, saying “he didn’t want to say any more”, and should not have made use of this testimony in summation, by pointing out that “when defendant was asked about striking the trooper, he had not denied that he had done so or offered an explanation, but instead had stated that he did not want to say anything else.”

“It is axiomatic that when a defendant invokes his or her constitutional right against self-incrimination, the People may not use his or her silence against him or her on their direct case…. The principle applies when a defendant unequivocally states his or her desire to halt all questioning, even if he or she has previously responded to other questions…” [internal punctuation & citations omitted].” Because Watson’s declaration that he did not want to say any more was indeed “an ‘unequivocal and unqualified invocation of the right’ to remain silent [citations omitted], the testimony should not have been admitted, and defendant’s objections [to the prosecutor’s summation] should not have been overruled.”

But, the Third Department concluded, a new trial was not required. The evidence of Watson’s guilt of all the counts in the indictment was overwhelming, and “there is no reasonable possibility that the error contributed to defendant’s convictions [citations omitted].”

People v Inman, 2017 NY Slip Op 04918 (6/15/17) – At Inman’s trial for the burglary of his elderly neighbor’s apartment, the People sought to elicit proof that, as she was helping to clean out Inman’s apartment in his absence (he was in jail on the burglary charge), she discovered not only items relating to the burglary, but also possessions of hers that had gone missing before the burglary. “In order to demonstrate that the items found by the victim had not been disturbed in the months since the burglary, the People further presented proof of defendant’s pretrial confinement” — over defense counsel’s objection, and after the prosecutor refused defendant’s offer to stipulate that he had not been in the apartment. Although “some such proof was needed to give import to what the victim found in defendant’s apartment several months after the burglary,” evidence of defendant’s incarceration (not simply his absence from his home) was “overly detailed” and unduly prejudicial. The trial court, however, did give a limiting instruction to the jury, and the 3rd Department found that the evidence of Inman’s guilt was overwhelming. Consequently, it deemed the error harmless. See People v Malloy, 124 AD3d 1150, 1151 (3rd Dept 2015).

Cross-examination

First Department

People v Herrerra, 2017 NY Slip Op 05052 (6/20/17) – Trial court “providently exercised its discretion in denying defendant’s mistrial motion made after the prosecutor asked about defendant’s gang nickname. Defendant never answered the question, which was immediately stricken from the record, and the court’s instructions were sufficient to avoid any prejudice. The record does not establish that the prosecutor’s question was a deliberate violation of a Sandoval ruling” (internal citations and quotations omitted).

Second Department

People v Guerrero, 2017 NY Slip Op 03772 (5/10/17) – The Second Department agreed the trial court should not have granted the People’s request to modify the pretrial Sandoval ruling, thereby permitting the prosecutor to cross-examine Guerrero as to a 2011 assault. But it deemed the error harmless: the evidence of his guilt, “without reference to the error, was overwhelming, and there is no significant probability that the error contributed to the conviction[s] [citations omitted].”

Third Department

People v Cherry, 2017 NY Slip Op 03077(4/20/17) – “Defendant’s contention that the People improperly questioned him about his gang affiliation is unpreserved for our review [see People v Fournier, 137 AD3d 1318, 1321 (2016)] and, in any event, is without merit inasmuch as it was defendant, and not the People, who first raised the issue [see People v Abrams, 73 AD3d 1225, 1228 (3rd Dept 2010), affd 17 NY3d 760 (2011)].”

People v Mesko, 2017 NY Slip Op 03810 (5/11/17)

  • Not improper for the prosecutor to cross-examine a defense witness as to why he did not give his account of the party to a police investigator despite being asked to do so and, in particular, whether that failure was connected to directions given by the captain of a sporting team counting him and defendant among its members to stay quiet [see People v Garcia, 4 AD3d 374, 374 (2d Dept 2004)].
  • The prosecutor, however, should not have “subjected a defense witness who had been at the party to inflammatory cross-examination regarding whether he believed it was ‘okay’ for a man to enter a bedroom and force himself upon a sleeping woman [see e.g. People v Hull, 71 AD3d 1336, 1339 (3rd Dept 2010].” But the misstep, the Third Department concluded, did not warrant a new trial.

Fourth Department

People v Hayward-Crawford, 2017 NY Slip Op 04581 (6/9/17) – During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated (see People v Fredrick, 53 AD3d 1088, 1089), and improperly questioned defendant about the conviction of her codefendant husband of the same crime (see generally People v Rivera, 116 A.D.2d 371, 373–374). The prosecutor also improperly questioned defendant concerning the criminal history of her husband (see People v Bartholomew, 105 AD3d 613, 614).

People v Griffin, 2017 WL 2604518 (6/16/2017) – The Court rejected defendant’s contention that County Court erred in refusing to grant his motion for a mistrial based upon the prosecutor’s cross-examination of a defense witness with questions implying that defendant had threatened the witness to testify, particularly through two of defendant’s friends who were spectators in the courtroom. The Court concluded that the disputed questions were isolated, and that the trial court took appropriate action to dilute the effect of the questions by granting the alternative relief requested by defendant, i.e., permitting defense counsel to recall the witness to explain that the two spectators were the witness’s cousins, and that they were in the courtroom to support him. Accordingly, the alleged prosecutorial misconduct did not warrant reversal, and the court did not abuse its discretion by denying the motion for a mistrial.

Summation

U.S. District Court Western District of New York

Griggs v Lempke 1:14-CV-01004 (MAT) (WDNY June 1, 2017) – In dismissing Griggs’ petition for habeas relief, WDNY rejected the claim that trial counsel was ineffective for failing to object to prosecutor’s comments during summation. The Court found that although the prosecutor’s comments about defense counsel’s role were improper (“to the effect that counsel’s role was to put on ‘spin’ on the evidence or ‘[d]ivert . . . attention'”), the remarks did not have the cumulative effect of denying Griggs a fair trial, and he had not demonstrated that the outcome would have been different but for counsel’s errors.

Court of Appeals

On April 4, 2017, the Court of Appeals handed down two decisions addressing prosecutors’ use of PowerPoint presentations in summation: People v Williams, 2017 NY Slip Op 02588, and People v Anderson, 2017 NY Slip Op 02589. The Court unanimously affirmed the judgment of conviction in Williams; Anderson’s conviction too was affirmed, but by a 5-2 majority of the Court. “There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments,” the unanimous Court (DiFiore, Ch. J.) declared in Williams. “Indeed, it can be an effective tool.”

“But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it [citation omitted]. If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence (see e.g. People v Santiago, 22 NY3d 740, 751 [2014]). Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable [see e.g. State v Walker, 341 P3d 976 (Wash 2015)].”

In his closing argument at Williams’ trial for burglary, assault, and criminal possession of a weapon, the prosecutor incorporated a PowerPoint presentation that included slides of exhibits with added circles, arrows, or text. “Significantly, the prosecutor displayed slides depicting the still photographs from the surveillance video that he had showed the victim’s brother, which had been annotated with captions such as, “[the victim’s brother’s] truck” and “[the victim’s brother] sees Defendant,” despite the witness’s inability to make those definitive identifications in his trial testimony. Defense counsel raised objections at various points, several of which were sustained,” and following the summation, he moved for a mistrial; the mistrial motion was denied, after counsel rebuffed the trial court’s invitation to consider “anything less than a mistrial.”
In rejecting Williams’ contention that the prosecutor’s summation denied him a fair trial, the Court pointed to

  • the trial judge’s instructions to the jury, “on more than one occasion that the attorneys’ arguments were not evidence and that the jury was the sole judge of the facts”
  • the trial court’s attentiveness: in addition to sustaining several of defense counsel’s objections during the summation, it told the jury at one point “to disregard the prosecutor’s annotations to the images of the trial exhibits,” and subsequently aborted the PowerPoint presentation, stating that it was “not allowing any more…superimposed words”
  • the fact that “the actual trial exhibits remained pristine for the jury’s examination”

Judge Abdus-Salaam, writing for the majority in Anderson (her last reported opinion before her death a week later), expanded further on the use of “annotated” PowerPoint slides:

“At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel’s argument, or in the court’s admonitions. We reject defendant’s position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence.”

The court here “properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence.” Moreover, “the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations.”

First Department

People v Rivers, 2017 NY Slip Op 03043 (4/20/17) – Defendant’s challenge to prosecutor’s summation unpreserved, and rejected as an alternative holding. “The prosecutor never suggested that certain DNA evidence, which was unidentifiable, linked defendant to the crime, and defendant’s assertion that the prosecutor made the kind of misrepresentations described in People v Wright, 25 NY3d 769 (2015) is meritless.”

People v Brown, 2017 NY Slip Op 03056 (4/20/17) – Defendant’s “claim that the prosecutor improperly asked the jurors to consider the victim’s testimony as if it came from a ‘friend’ in a casual conversation” was “permissible rhetoric that did not vouch for the witness, and was harmless.”

People v Spallone,2017 NY Slip Op 04065 (5/23/17) – “The prosecutor’s comments in summation attacking the veracity of statements in defendant’s affidavit and the credibility of his trial testimony were not improper in this case, where defendant was charged with various crimes requiring proof that he made false statements and acted with intent to deceive, and the prosecutor’s arguments were not inflammatory.”

People v Boyd, 2017 NY Slip Op 04809 (6/13/17) – Defendant’s multiple claims of prosecutorial trial misconduct found “unpreserved and unavailing.” First, defendant’s argument that the prosecutor knowingly elicited perjury was unsupported by any record evidence to support this claim. Second:

“defendant’s argument that the prosecutor denigrated the defense by insinuating that defense investigator Bruno was ‘in cahoots’ with defense counsel or defendant is unpreserved. The prosecutor asked Bruno whether he was being paid by defense counsel or defendant. Defense counsel objected to that question, and the court sustained the objection. Defendant did not seek any further relief.
In any event, defendant was not harmed, because Bruno only stated that he would be paid at the end of the case when he ‘submit[ted] a voucher to the judge.’The prosecutor also acknowledged, ‘There is nothing wrong with that, you’re working. This is your job, correct?’
Defendant also failed to preserve his claim that, during their summation, the People impermissibly shifted the burden of proof to the defense by arguing that defendant had failed to produce [a witness], that there were numerous questions to which the prosecutor did not ‘know the answer,’ and on which the ‘[s]ilence is deafening.’ In fact, defense counsel did not object to any of these comments.
Further, when the prosecutor commented that [the witness] had said that defendant had told him he would not have to testify, and in fact, he did not testify, defense counsel objected. The court overruled the objection, but it instructed the jury that it would later deliver ‘a full charge [that] the defendant does not have to prove anything.’ The prosecutor’s comment, either standing alone or combined with the other comments defendant cites, did not amount to conduct so pervasive and egregious that it deprived defendant of a fair trial. Moreover, the court reminded the jury that the defense did not have to prove anything, alleviating any prejudice to the defense” (internal citations and quotations omitted).

People v McMillan, 2017 NY Slip Op 05041 (6/20/17) – Finding the defendant’s challenges to the prosecutor’s summation unpreserved and noting that “the word objection alone is insufficient to preserve an issue for review as a question of law” (internal citations and quotations omitted). Also finding that “any errors involving summation” were harmless in light of the evidence of defendant’s guilty, which included a videotape of the incident.

Second Department

People v Ramirez, 2017 NY Slip Op 03780 (5/10/17) – Prosecutor’s summation prompted the Second Department to reverse Ramirez’s conviction of Gang Assault 1° in the interest of justice.

  • “[T]he prosecutor acted as an unsworn witness when he addressed the impeachment of one of the People’s main witnesses, a sister of the complainant (hereinafter the sister). During cross-examination, the sister was impeached by inconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutor argued to the jury that defense counsel had ‘selected certain portions out of context in the grand jury minutes,’ and that the jury ‘didn’t get the entire grand jury minutes’ [citations omitted]. These comments were particularly prejudicial. The sister’s testimony, and thus her credibility, were crucial to the People’s proof against the defendant, which was less than overwhelming. The prosecutor’s comments suggested, without any evidentiary support, that the jury should disregard the sister’s grand jury testimony, in which she failed to name the defendant as a participant in the subject assault, because there was more to the testimony than they knew.”
  • Additionally, “the prosecutor improperly suggested, and invited the jury to speculate, that the father [of the complainant and her sister] would have given testimony supportive of his children had he been called to testify [see People v Singh, 128 AD3d 860, 863 (2d Dept 2016); People v Smith, 288 AD2d 496, 497 (2d Dept 2001).”

“Particularly in light of the highly prejudicial nature of the comments involving the sister’s grand jury testimony, these improper comments deprived the defendant of his right to a fair trial [citations omitted].”

People v Simpson, 2017 NY Slip Op 04474 (6/7/17) – Second Department agreed that the prosecutor in summation should not have remarked, more than once, on Simpson’s pre-arrest silence. But because the trial court gave an appropriate curative instruction to the jury — and it is presumed that the jurors abided by the instruction, the App. Div. court declined to order a new trial. See People v Guzman, 76 NY2d 1, 7 (1990); People v Williams, 123 AD3d 1152, 1154 (2d Dept 2014), affd 29 NY3d 84 (2017).

Third Department

People v Wynn, 2017 NY Slip Op 02842 (4/13/17) – Prosecutor’s remarks in summation that the defense was accusing the arresting officer of planting the heroin on Wynn “constituted fair comment on defense counsel’s challenge to the arresting officer’s integrity and credibility [see People v Hawkins, 110 AD3d 1242, 1244 (3rd Dept 2013)].” Defendant had not preserved his objections to other aspects of the prosecutor’s summation; in any event, those complained-off comments did not deny defendant a fair trial.

People v Glass, 2017 NY Slip Op 03809 (5/11/17) – The claim that Glass was denied the effective assistance of counsel was chiefly premised on, e.g., People v White, 25 NY3d 769 (2015), and the fact that his attorney did not object to the prosecutor’s characterization in summation of the DNA evidence “which pointed to, but did not establish [Glass] as the perpetrator.” The Third Department, in rejecting the ineffective assistance of counsel claim, found:

“The People’s summation, while largely appropriate in dealing with the import of the DNA evidence, did overstate that defendant’s ‘DNA [was] on the evidence’ and that the isolated male DNA belonged to defendant ‘or his identical twin.’ The problematic comments, however, were made in response to criticisms offered by the defense in summation that the isolated male DNA recovered was never compared to the DNA of another potential suspect. The People argued that the comparison was not necessary because other markers on his DNA ruled the potential suspect out as a contributor, and the objectionable comments referred to the trial testimony of a forensic scientist on that issue. Accordingly, even if the People’s comments ‘exceeded what would be considered to be a fair response to defense counsel’s closing argument or fair comment on the evidence,’ the context in which they were made establishes that they ‘did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process’ [citations omitted].”

Fourth Department

People v Flowers, 2017 NY Slip Op 04990 (6/16/2017) – On appeal from a conviction after jury verdict of course of sexual conduct against a child in the second degree, defendant contended that that he was denied his right to a fair trial based upon prosecutorial misconduct, particularly during summation. Although defendant did not object to all of the statements alleged on appeal to constitute prosecutorial misconduct, and thus failed to preserve for review his claims with respect to those particular statements, the court nevertheless exercised its power to review all of his claims of prosecutorial misconduct as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

The People correctly conceded that the prosecutor improperly appealed to the sympathy of the jury and that the prosecutor improperly implied that a potential adolescent witness did not testify because he felt “guilt” about defendant’s actions; County Court, however, properly sustained defense counsel’s objection to the prosecutor’s statement and gave a curative instruction, which the jury is presumed to have followed. Thus, with respect to that instance of misconduct, any prejudice was alleviated. The People also correctly conceded that the prosecutor denigrated defense counsel by stating that he intentionally attempted to confuse an adolescent prosecution witness. The Fourth Department further concluded that, in an attempt to discredit the testimony of an adolescent defense witness, the prosecutor misstated the evidence with respect to whether the witness had spoken with defendant regarding the allegations against him. Although the prosecutor properly responded to defense counsel’s remarks during summation attacking the credibility of the victim, she also improperly vouched for the credibility of the victim’s testimony. Furthermore, the prosecutor improperly acted as an unsworn expert by describing defendant’s behavior towards the victim as “classic grooming behavior,” and as an unsworn witness with respect to reasons why the victim delayed in reporting what had occurred (see People v Fisher, 18 NY3d 964, 966).

The Court nevertheless concluded that reversal was not mandated inasmuch as “the misconduct [did] not substantially prejudice[ ] … defendant’s trial” (People v Galloway, 54 NY2d 396, 401): It is axiomatic that we must consider whether “the conduct of the prosecutor ‘has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law. In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached’ “ (People v Griffin, 125 AD3d 1509, 1511). Although there were several instances of misconduct during the prosecutor’s summation, the court thoroughly instructed the jury before summations that, inter alia, nothing that an attorney says during his or her summation is evidence, and that the jury must decide the case only on the evidence and the law, and not on anything that is said during a summation. The court also gave curative instructions after the objections it sustained. Furthermore, the evidence against defendant was overwhelming and “without the conduct[,] the same result would undoubtedly have been reached” (Mott, 94 A.D.2d at 419).

People v Hayward-Crawford, 2017 NY Slip Op 04581 (6/9/2017) – During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated. Although County Court sustained many of defense counsel’s objections and gave curative instructions, the Fourth Department could not conclude on this record that any resulting prejudice was alleviated. Moreover, it noted that even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, … the cumulative effect of a prosecutor’s improper comments … may overwhelm a defendant’s right to a fair trial” (People v Riback, 13 NY3d 416, 423), and that is the case here. It therefore reversed the conviction and grant a new trial, without regard to any evaluation as to whether the errors contributed to defendant’s conviction.

People v Case, 2017 NY Slip Op 03638 (5/5/2017) – The prosecutor engaged in misconduct on several occasions, and the Court reached defendant’s unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury’s sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim’s credibility and injecting the prosecutor’s personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant’s testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant’s credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. The Court concluded that the prosecutor’s inflammatory comments had a decided tendency to prejudice the jury against the defendant, and that the cumulative effect of the prosecutorial misconduct, which substantially prejudiced defendant’s rights, required reversal.

People v Smith, 2017 NY Slip Op 03657 (5/5/2017) – Defendant contended that he was denied a fair trial by prosecutorial misconduct on summation, but he failed to object to any of the comments he now raises on appeal, and thus his contention is not preserved for review. In any event, defendant’s contention is without merit. Although the Fourth Department agreed with defendant that certain remarks made by the prosecutor were improper, particularly that the jury “owed a duty” to the victim and the people of the community, it nevertheless concluded that the improper remarks were not so egregious that defendant was denied a fair trial. The remaining comments at issue were either a fair comment on the evidence or a fair response to defense counsel’s summation, and thus those comments did not exceed the bounds of legitimate advocacy.

People v Womack, 2017 NY Slip Op 04711 (June 9, 2017) – Defendant failed to preserve for our review his contention in his pro se supplemental brief that he was deprived of a fair trial by prosecutorial misconduct on summation because he failed to object to any of the remarks by the prosecutor during summation. In any event, defendant’s contention lacks merit. The prosecutor did not improperly vouch for the credibility of a prosecution witness on summation, because “[a]n argument by counsel on summation, based on the record evidence and reasonable inferences drawn therefrom, that his or her witnesses have testified truthfully is not vouching for their credibility” (People v Keels, 128 AD3d 1444, 1446, lv denied26 NY3d 969; see People v. Bailey’, 58 NY2d 272, 277). Furthermore, the prosecutor’s remarks were a fair response to defense counsel’s summation, inasmuch as defense counsel’s entire summation was an attack on the credibility of that prosecution witness.

Miscellaneous

First Department

People v Jones, 2017 NY Slip Op 02595 (4/4/17) – Although affirming the conviction, and finding that defendant’s claim that the People “constructively amended the indictment” was unpreserved and without merit because there was “no material variance between the People’s trial theory and the theory alleged in the indictment,” the Court noted that it found “the repeated mistakes and missteps taken by the prosection troubling.” The “ameliorative action taken by the trial judge” was “appropriate to ensure that the defendant did not suffer any prejudice.”

Second Department

People v Fermin, 2017 NY Slip Op 03769 (5/10/17) – Court rejected, inter alia, Fermin’s claim that he was entitled to a new trial because he was not made privy to the People’s application for a material witness order.

“Pursuant to CPL Article 620, either the prosecution or the defendant may seek an order adjudicating a person a material witness and fixing bail to secure that person’s attendance at trial (see CPL 620.10, 620.30). ‘Neither the defendant nor the prosecution is entitled to notice of an application for a material witness hearing, and neither party has standing to contest or to participate in a hearing on an application made by the other.’ [People v Hamilton, 272 AD2d 553, 553 (2d Dept 2000), quoting People v Bond, 264 AD2d 851, 851 2d Dept 1999), revd on other grounds 95 NY2d 840(2000); additional citations omitted]. Here, the record demonstrates that the sole issue considered by the Supreme Court at the ex parte discussion was whether an eyewitness was willing to attend trial voluntarily or should be compelled to attend via a material witness order. Since this discussion was ministerial in nature and bore no relationship to the merits of the charges against the defendant, his exclusion did not have a substantial relationship to his ability to defend against those charges [see People v Turaine, 227 AD2d 299 (1st Dept 1996)]. Likewise, the defendant has not established that he was entitled to a copy of the transcript of the discussion or the submissions in support of the prosecution’s earlier material witness application relating to this witness [see generally People v Owens, 235 AD2d 268 (1st Dept 1997]).”

Third Department

2nd Quarter

People v Watson, 2017 NY Slip Op 03802(5/11/17) – Rejected Watson’s claim that he was entitled to dismissal of the indictment — under People v Jenkins, 41 NY2d 307 (1977) — because the People failed to produce at trial the confidential informant who had (a) introduced Watson to the undercover officer, and (b) participated in 3 of the 5 controlled buys charged by the indictment. Although the CI’s testimony would have been material & relevant to Watson’s guilt or innocence, the drastic remedy of reversal is reserved for those cases where “‘the People have intentionally procured the disappearance of the [CI] when they knew or should have known that the testimony would be material and relevant to the defense, or have exerted inadequate efforts to locate the [CI], to avoid his or her presence at trial’ [Jenkins, 41 NY2d 307, 312].”

Nothing in the record here suggested that the People were responsible for the unavailability of the CI, and “[o]nce it became apparent that defendant might want to call the CI as a witness in furtherance of his agency defense, law enforcement officials promptly made efforts to locate the CI.” When an officer was able to reach the CI via a phone contact, she told him that she had fled the area after being threatened by friends of Watson & was adamant that she “would not return or reveal her location for fear of reprisal.”

Consequently, it then became incumbent on the defendant to demonstrate either that the CI’s testimony would be either exculpatory or subject to such impeachment as to create a reasonable doubt as to the reliability of the People’s case. Jenkins, 41 NY2d 307, 311. Watson “was unable to meet [t]his high burden.” Lastly, the trial court gave him the benefit of a missing witness charge, even though that is not required by cases involving similar unavailability of a CI. See, e.g., People v Carpenito, 80 NY2d 65, 68 (1992); People v Castro, 291 AD2d 292, 293 (1st Dept 2002).

“Accordingly, under all of these circumstances, neither dismissal of the indictment nor a new trial was warranted [see, e.g., People v Maneiro, 49 NY2d 769, 771 (1980); People v Torres, 213 AD2d 687, 688 (2nd Dept 1995)].”

Fourth Department

2d Quarter 2017

People v Smith, 2017 NY Slip Op 03657  – The Fourth Department rejected defendant’s contention that the prosecutor acted in bad faith by calling a witness whom he knew would not testify in accordance with the sworn statement the witness gave to the police within 24 hours of the murder. Prior to the commencement of the trial, County Court questioned the witness with respect to the contents of his statement to the police, i.e., that he saw the victim talking to defendant, whom he identified by his street name, moments before he heard a gunshot, and that he was “100% sure” that it was defendant whom he saw talking to the victim. The statement also reflected that the witness knew the female accomplice, whom he also identified by name. The witness told the court that the police detectives who took the statement were “mixed up” because he was not an eyewitness to the murder; however, he agreed with the court that he was obligated to tell the truth when called to testify. Thus, “there is no indication that the prosecutor called [the witness] in ‘bad faith’ simply to use [his] presence to introduce prior statements that would otherwise be inadmissible”. During his trial testimony, the witness denied that he knew either defendant or the female accomplice and denied that he had ever heard their names or seen them before. The court therefore properly permitted the prosecutor to impeach the witness insofar as the witness had provided a sworn statement to the police that he knew the names of defendant and the female accomplice. Such impeachment was proper because the witness gave “testimony upon a material issue of the case [tending] to disprove the position of” the People that it was the defendant, and not the male accomplice, who shot the victim (CPL 60.35[1]; see People v Berry, 27 NY3d 10, 17; People v Saez, 69 N.Y.2d 802, 804). Inasmuch as the only eyewitness evidence identifying defendant as the shooter was provided by his accomplices, the witness’s testimony “affirmatively damage [d] the [People’s] case” (Saez, 69 NY2d at 804). Furthermore, the court properly instructed the jury that it could consider the evidence regarding the contents of the statement, which was not admitted in evidence (see CPL 60.35 [2]; cf.Berry, 27 NY3d at 18), only for the purpose of impeaching the credibility of the witness, and not for its truthfulness.

Other News

New York

Former Brooklyn ADA pleads guilty

One week after her arraignment on the federal indictment charging her with 2 counts of Illegal Interception of Communications, former Kings County ADA pled guilty as charged. The sentencing date has not yet been scheduled.

Long Island Prosecutor Fired During Murder Trial

Murder charge dismissed mid-trial and the prosecuting Suffolk County ADA fired for misconduct following a hearing in which defense counsel detailed dozens of instances of evidence withheld by the ADA.

Nassau prosecutor loses job after failing to disclose evidence

Nassau Prosecutor, who led the Child Abuse Unit, resigned following recent rulings by a Nassau Judge that she committed Brady violations.

Around the U.S.

California
Faced with 13 charges of felony perjury and grand larceny brought by the California Attorney General’s Office and the prospect of a removal proceeding initiated by grand jury action, Contra County District Attorney Mark Peterson entered a negotiated, nolo contendre plea to 1 count of felony perjury on June 14 after resigning earlier that same day. Peterson previously acknowledged having raided his campaign coffers for “loans” of more than $66,000 he spent on, e.g., personal entertainment and travel & had paid a $45,000 fine in January of this year as per a stipulation with the state’s Fair Political Practices Commission.

Florida
The Circuit Court of Appeal, Third District ordered a new trial of the indictment charging David Scala and Alan Weitz with grand theft for their roles in a mortgage fraud scheme because the 2011 trial transcript was hopelessly incomplete and gravely flawed. In order “to ensure as best we can that such improper arguments are not repeated at a new trial,” the court condemned, inter alia, the following statements made by the prosecutor in summation:

  • “You know there is an old saying among lawyers probably older than I am. When the facts are against you argue the law. When the law is against you argue the facts. When they are both against you blame the prosecutor. The evidence in this case, the law in this case both clearly lead you, and your common [sense], to the [in]escapable conclusion that these defendants committed grand theft. The defendants want to talk about everything [except] the evidence. You know as a prosecutor I take an oath and have an obligation – affirmative obligation – everyday I work. I work everyday, I walk into court to only argue those things that I know are in good faith are true. The defense lawyers in this case didn’t find themselves so bound. [emphasis in original]”
  • The prosecutor also “compared [the defendants] to bank robbers Bonnie and Clyde, and to Willy Sutton (described by the prosecutor as a “famous bank robber” in the 1920’s and 1930’s),” and
  • told the jurors, more than once, that the defense attorneys were “simply blowing smoke in your face.”

Georgia
By a per curium opinion issued on May 1, the Georgia Supreme Court expressly declined — “under the peculiar circumstances — to adopt the recommendations that a former Fulton County ADA either be formally admonished (special master & review panel) or receive a public reprimand (State Bar’s recommendation) for violating Georgia Rule of Professional Conduct 3.8(d), which requires a prosecuting attorney in a criminal case to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or that mitigates the offense.” Instead, it found “the evidentiary record fails to show any clear-cut violation of Brady or Rule 3.8 (d).”

“Brady does not always require pretrial disclosure of exculpatory evidence, and at least in some circumstances, a prosecuting attorney may satisfy Brady by disclosing it at trial. See, e.g., Burgan v. State, 258 Ga. 512, 513, 371 SE2d 854 (1988) [quotation and other citations omitted].
Moreover, our Court of Appeals has held that a prosecuting attorney may satisfy Brady simply by himself introducing at trial the substance of the exculpatory evidence. Whether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefitted the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense. See Burgan, 258 Ga. at 513-514.
At the trial in question, Lee called the child as a witness, and Lee himself elicited testimony on direct examination that amounted to a recantation of the earlier allegation of anal sodomy. The exculpatory nature of the testimony on direct examination was far more clear and unequivocal than the pretrial denial that the accused had ‘touched [the child’s] butt.’ Following the direct examination, defense counsel had an opportunity to cross-examine the child. Lee did not dispute the credibility of the recantation on direct examination, and he urged the jury in closing argument to accept it as credible. He made no effort to rehabilitate the allegation of anal sodomy in the recorded statement of the child. He conceded the anal sodomy charge. And the jury ultimately acquitted the accused of anal sodomy. It is true that the recantation of the anal sodomy allegation bears upon the credibility of other statements made by the child about oral sodomy, and so, the inconsistent accounts of anal sodomy were relevant to the charge involving oral sodomy. But the inconsistency became clear and obvious when the child recanted the allegation of anal sodomy in the presence of the jury, and the State Bar points to nothing in the record of these disciplinary proceedings that shows that the accused was prejudiced in any way by the late disclosure that the anal sodomy, as Lee put it, ‘didn’t happen’.”

(The Supreme Court attached little importance to the fact that the criminal defendant, Jon Thieme, was granted a new trial, with the consent of the DA’s Office. A search of Georgia’s sex offender registry shows that Thieme was subsequently convicted of Child Molestation.)

Indiana
Former Marion County Prosecutor Carl J. Brizzi was suspended from the practice of law for professional misconduct committed while he was serving as the County’s elected prosecutor. At the time in question, Bizzi was involved in a real estate venture with a local, criminal defense attorney, Paul Page (since convicted in federal court of wire fraud). Page complained to Brizzi about the terms of the plea offer extended to one of his clients, and Brizzi instructed the deputy prosecutors handling the case to offer a far more favorable deal.

“Intervention of this nature was highly unusual; the chief deputy indicated he had never previously been given such an instruction by Respondent in a narcotics case, and both deputies knew of no reason to reduce the [top count charge of a class B felony] to a class D felony or to return any of the seized funds, as they felt the case against [Page’s client] was very strong.”

The Indiana Supreme Court agreed with the judicial hearing officer that there was clear and convincing evidence that Brizzi violated Professional Conduct Rule 1.7(a)(2), which generally prohibits representation of a client if “there is a significant risk that the representation…will be materially limited by…a personal interest of the lawyer.” As per the hearing officer’s recommendation, the Court suspended Brizzi from the practice of law for 30 days, beginning on May 1, 2017.

Maryland

Former Baltimore prosecutor gets one-year sentence for child pornography charge

Former Baltimore prosecutor sentenced to one year in jail after guilty plea to possession with intent to distribute child pornography.

New Mexico

Southern NM prosecutor facing charges arising out of driving incident

District Attorney was the subject of a traffic stop in June 2016 in which she was suspected of drunk driving, but was not given a sobriety test and was released without charges. Then, in June 2017, the state Attorney General’s Office filed reckless driving, ethics and misuse of office charges against her, saying that she misused her state vehicle for private business the day she was stopped and that she then harassed the officers investigating the incident. The stop was captured on footage by the police bodycam