| People v Casanova |
| 2014 NY Slip Op 04978 [119 AD3d 976] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vLazaro Casanova, Also Known as Cuba, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedNovember 30, 2012 in Albany County, upon a verdict convicting defendant of the crimesof criminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree.
In February 2012, defendant allegedly sold heroin to a male confidential informant(hereinafter CI) during a controlled buy overseen by police officers in the City of Albany.During two similar controlled buys conducted in March 2012, defendant also allegedlysold heroin to another CI, a female. Shortly thereafter, defendant was arrested, andofficers found heroin hidden in his jacket. Defendant was charged by threeindictments—subsequently joined for trial—with three counts of criminalsale of a controlled substance in the third degree and one count each of criminalpossession of a controlled substance in the third degree and criminal possession of acontrolled substance in the seventh degree. Following a jury trial, he was found guilty oftwo counts of criminal sale of a controlled substance in the third degree and one count ofcriminal possession of a controlled substance in the third degree.[FN*]He was sentenced as a [*2]second felony drug offender to an aggregate prison term ofseven years, followed by three years of postrelease supervision. Defendant appeals.
The principal question on this appeal is whether various remarks made by theprosecutor during summation were so prejudicial in their cumulative effect that theyoperated to deny defendant his fundamental right to a fair trial. We are persuaded thatthey were and, although not all of defendant's challenges to the prosecutor's statementswere preserved by appropriate objections, we exercise our interest of justice jurisdictionto take corrective action (see CPL 470.15 [6] [a]; People v Forbes, 111 AD3d1154, 1160 n 6 [2013]; People v Russell, 307 AD2d 385, 387 [2003];People v Skinner, 298 AD2d 625, 626 [2002]).
Counsel is afforded wide latitude in advocating for his or her case during summation,but "[t]here are certain well-defined limits" that may not be exceeded (People vAshwal, 39 NY2d 105, 109 [1976]). Here, the prosecutor strayed beyond thoseparameters by, among other things, repeatedly making remarks that impermissibly shiftedthe burden of proof from the People to defendant (see People v Forbes, 111AD3d at 1159; People vDiotte, 63 AD3d 1281, 1282-1283 [2009]; People v Allen, 13 AD3d 892, 898 [2004], lvdenied 4 NY3d 883 [2005]). He described defense counsel's summation as "throwingmud," which he characterized as something done by people who "don't have a reasonableexcuse as to crimes that they've committed"—thus not only denigrating the theoryof defense, but suggesting that it was defendant's affirmative burden to present such anexcuse. He then averred that nothing in the trial record established that defendant had notcommitted the alleged acts. At this point, Supreme Court intervened sua sponte,admonishing the prosecutor that he was improperly shifting the burden of proof and thatdefendant had no obligation to present evidence proving his innocence. Undeterred, theprosecutor went on to suggest that defendant had been unable to establish that the maleCI had a motive to lie, thereby improperly suggesting to the jury that defendant had anobligation to do so (see People vLevandowski, 8 AD3d 898, 900-901 [2004]). He stated that, in order to finddefendant not guilty, jurors would have to believe that police officers were engaged in ascheme whereby they staged audio recordings of the controlled buys and plantedevidence on defendant to frame him, referencing a comedy skit in which policepurportedly got away with mistreating people "by sprinkling drugs on them." Defensecounsel objected that these comments were improper because, although he had arguedthat the police work was "sloppy," he had made no claims of police conspiracies,dishonesty or other intentional misconduct, and we agree (see People v Forbes,111 AD3d at 1159). Further, as the court warned the prosecutor, the remarks improperlyshifted the burden of proof and—by advising the jury that it would have to believethat police misconduct had occurred in order to acquit defendant—improperlysuggested that more than a reasonable doubt was required. Nevertheless, the prosecutor'svery next statement again mischaracterized the burden of proof, advising the jury that tohave a reasonable doubt, it would "have to doubt the reasonableness of everything that[it] heard during the course of this trial."
The prosecutor also repeatedly and improperly expressed his personal opinion in an[*3]effort to vouch for the credibility of witnesses(see People v Bailey, 58 NY2d 272, 277 [1983]; People v Wlasiuk, 32 AD3d674, 681 [2006], lv dismissed 7 NY3d 871 [2006]; People v Brown, 26 AD3d392, 393 [2006]). When discussing a forensic chemist's testimony that thesubstances allegedly sold and possessed by defendant were heroin, the prosecutor statedthat the issue was "done" and that it was "a closed case." He repeatedly described hiswitnesses as honest or declared that they had told the truth. He told the jury to take themale CI's word for what had happened during one of the controlled buys, adding that he"believe[d] that [the male CI] was more than credible." Immediately after Supreme Courtadmonished the prosecutor that this expression of his personal beliefs was improper, hestated that the male CI was credible and trustworthy because a federal agency, in additionto the local police, was "comfortable" working with him (see People v Oathout, 21NY3d 127, 131 [2013]). Even after the court sustained the objection to thiscomment and instructed the jury to disregard it, the prosecutor doggedly repeated, "He'sworked with both agencies." These errors were compounded by other improprieties, suchas the prosecutor's disparaging statement that, if the CIs were as "filthy and disgustingand grimy" as the defense suggested—although, as Supreme Court later noted,defendant had not characterized the CIs that way—"then what are you supposed tothink of the person who has made it his job to keep them addicted to these drugs, theperson that's supplying them?"
We are mindful that "[s]ummations rarely are perfect . . . [and] notevery improper comment made by the prosecuting attorney during the course of closingarguments warrants reversal" (People v Forbes, 111 AD3d at 1160). In reviewingwhether misconduct has deprived a defendant of a fair trial, we consider its severity andfrequency, the corrective action taken, if any, and whether the result would likely havebeen the same in the absence of the conduct (see People v Story, 81 AD3d 1168, 1169 [2011]). Here,Supreme Court sustained defense counsel's objections or admonished the prosecutor suasponte regarding several comments; many other improper remarks passed withoutobjection or admonishment, and few curative instructions were given. Given thepersistence and magnitude of misconduct, we cannot say that any resulting prejudice wasalleviated (see People v Calabria, 94 NY2d 519, 523 [2000]; People vRussell, 307 AD2d at 387). The cumulative effect of the multiple improprieties wasto cause such substantial prejudice to defendant that he was denied a fair trial.Accordingly, we reverse and remit for a new trial (see People v Riback, 13 NY3d 416, 423 [2009]; Peoplev Ashwal, 39 NY2d at 110-111; People v Forbes, 111 AD3d at 1160;People v Roundtree, 190 AD2d 879, 880-881 [1993]; People v Proper,177 AD2d 863, 864 [1991], lv denied 79 NY2d 922 [1992]).
All but one of defendant's remaining contentions are rendered academic by ourdetermination that a new trial is warranted; we find it prudent to address that claim.Defendant contends that a Wade hearing should have been conducted because thePeople failed to establish that the male CI's identification of defendant based upon aphoto array was merely confirmatory (see People v Rodriguez, 79 NY2d 445, 450[1992]). It is well settled that "[a] Wade hearing is not required when the witnessis so familiar with the defendant that there is little or no risk that police suggestion couldlead to a misidentification" (People v Carter, 57 AD3d 1017, 1017-1018 [2008], lvdenied 12 NY3d 781 [2009] [internal quotation marks and citations omitted]; see People v Boyer, 6 NY3d427, 431-432 [2006]). At a Rodriguez hearing, the People bear the burden ofestablishing that the witness was sufficiently familiar with defendant (see People vRodriguez, 79 NY2d at 452; People v Sanchez, 75 AD3d 911, 912 [2010], lvdenied 15 NY3d 895 [2010]; People v Graham, 283 AD2d 885, 887 [2001],lv denied 96 NY2d 940 [2001]). The analysis is narrowly applied and requiresproof of factors establishing the prior relationship, such as "the number of times thewitness saw the defendant prior to the crime, the duration and nature [*4]of those encounters, time periods and setting of theviewings, time between the last viewing and the crime, and whether the two individualshad any conversations" (People v Coleman, 306 AD2d 549, 550 [2003]; seePeople v Rodriguez, 79 NY2d at 451).
Upon review, we conclude that the People introduced insufficient information. Thesole witness at the Rodriguez hearing was a police detective who testifiedregarding the male CI's description of defendant. While this testimony revealed that themale CI had some familiarity with defendant, it lacked adequate detail to establish thatthe two were so well acquainted that the male CI was " 'impervious to policesuggestion' " (People v Dixon, 85 NY2d 218, 224 [1995], quotingPeople v Rodriguez, 79 NY2d at 452; see People v Coleman, 306 AD2dat 551; compare People v Colon, 307 AD2d 378, 379-380 [2003], lvdenied 100 NY2d 619 [2003]). Accordingly, upon remittal, a Wade hearingmust be conducted.
Peters, P.J., Lahtinen, Rose and Devine, JJ., concur. Ordered that the judgment isreversed, on the law and as a matter of discretion in the interest of justice, and matterremitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision.
Footnote *:Defendant was acquittedof one count of criminal sale of a controlled substance in the third degree. The jury didnot determine whether he was guilty of criminal possession of a controlled substance inthe seventh degree because that charge was submitted as a lesser-included offense ofcriminal possession of a controlled substance in the third degree (see CPL 300.40[3] [b]).