| People v Gordon |
| 2008 NY Slip Op 03241 [50 AD3d 821] |
| April 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kimarlie Gordon, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andSteven A. Mann of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered November 30, 2005, convicting him of attempted robbery in the second degree andassault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
We agree with the defendant that certain comments made by the prosecutor duringsummation exceeded the "broad bounds of rhetorical comment permissible in closing argument"(People v Galloway, 54 NY2d 396, 399 [1981]), and "the cumulative effect of suchconduct substantially prejudiced" his right to a fair trial (People v Calabria, 94 NY2d519, 523 [2000]). Insofar as some of these errors were not preserved for appellate review, wereview them in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6][a]).
During summation, the prosecutor improperly denigrated the defense by repeatedly likeningit to a "Hollywood" story and characterizing it as "ridiculous" and "absurd." Comments of thistype have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880[2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World,157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]). Moreover,the "Hollywood" story line of argument was not a stray comment, but was the [*2]overarching theme of the prosecutor's summation. The prosecutorcontinued this theme even after certain objections were sustained. Further, the prosecutorimproperly attacked the credibility of defense counsel by accusing him of withholding the truthfrom the jury (see People v Pagan, 2 AD3d at 880; People v McReynolds, 175AD2d 31, 32 [1991]; People v Simms, 130 AD2d 525, 526 [1987]). Under thecircumstances of this case, we cannot say these errors were harmless (see People v Crimmins,36 NY2d 230, 241 [1975]). Spolzino, J.P., Miller, Covello and Balkin, JJ., concur.