| People v Morrice |
| 2009 NY Slip Op 03282 [61 AD3d 1390] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin R.Morrice, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered January4, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in the second degreeand grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]) and grand larceny in the thirddegree (§ 155.35). Contrary to defendant's contention, County Court properly admitted inevidence an audiotape of a telephone conversation between defendant and the main prosecutionwitness despite the fact that the beginning of the audiotape was inaudible (see People vRivera, 257 AD2d 172, 178 [1999], affd 94 NY2d 908 [2000]; People vCleveland, 273 AD2d 787, 788 [2000], lv denied 95 NY2d 864 [2000]). In addition,we conclude that the prosecutor laid a proper foundation for the admission of the audiotape inevidence (see generally People v Ely, 68 NY2d 520, 527-528 [1986]), and that heproperly characterized the contents of the audiotape during his cross-examination of defensewitnesses and on summation. Although we agree with defendant that certain statements by theprosecutor during the grand jury proceeding were improper, we conclude that the exceptionalremedy of dismissal of the indictment is not warranted (see generally People v Huston,88 NY2d 400, 409 [1996]).
We agree with defendant, however, that he was deprived of a fair trial based on prosecutorialmisconduct during the trial. Although defendant failed to preserve for our review his contentionwith respect to certain alleged instances of prosecutorial misconduct (see CPL 470.05[2]), we nevertheless exercise our power to review defendant's contention with respect to thoseinstances as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).During the direct examination of the main prosecution witness, the prosecutor asked the witnessif she was "getting anything in return for [her] cooperation of telling the truth," and sheresponded "[n]ot at all." In fact, that witness was an accomplice and had received transactionalimmunity in exchange for her testimony before the grand jury (see CPL 50.10 [1];190.40 [2]). The prosecutor had an obligation to correct the misstatement of that witness butfailed to do so (see People v Novoa, 70 NY2d 490, 496-498 [1987]; People v Hendricks, 2 AD3d1450, 1451 [2003], lv denied 2 NY3d 762 [2004]; People v Potter, 254AD2d 831, 832 [1998]), and he compounded his misconduct in failing to correct themisstatement by telling the jury during summation that the witness was "getting nothing out ofhaving testified in this case."
The prosecutor also engaged in misconduct when he questioned a police detective on directexamination with respect to defendant's invocation of the right to counsel (see People vNicholas, 286 AD2d 861, 862 [2001], affd 98 NY2d 749 [2002]; see also Peoplev Beers, 302 AD2d 898 [2003], lv denied 99 NY2d 652 [2003]). It is well settledthat "the People may not elicit testimony concerning defendant's . . . invocation ofthe right to counsel" (Nicholas, 286 AD2d at 862). The prosecutor here, however,elicited such testimony not once, but twice, and also commented on defendant's invocation of theright to counsel during summation (seegenerally People v Romero, 54 AD3d 781 [2008], lv denied 11 NY3d 930[2009]). In addition, the prosecutor engaged in misconduct when he questioned defendant oncross-examination concerning his discussion of the case with his attorney during a recess.
The prosecutor further engaged in misconduct when he asked a defense witness oncross-examination whether she had ever been arrested for a crime. When the witness respondedthat she had never been convicted of a crime, the prosecutor asked, "Did you hear my question.Have you ever been arrested for a crime?" The witness responded in the affirmative, whereuponthe prosecutor asked her what the crime was for which she was arrested. "Impeachment of awitness by evidence or inquiry as to prior arrests or charges is clearly improper. The mere factthat a person has been previously charged or accused has no probative value" (People vCook, 37 NY2d 591, 596 [1975]). The prosecutor also engaged in misconduct when hequestioned that witness concerning whether her boyfriend was currently incarcerated, and heexceeded the bounds of legitimate advocacy during summation by characterizing defendant as aliar (see People v Fiori, 262 AD2d 1081 [1999]; People v Bonilla, 170 AD2d945 [1991], lv denied 77 NY2d 904 [1991]). Indeed, the prosecutor told the jury thatdefendant "just concocted a story now to try to deceive you" (see Fiori, 262 AD2d 1081[1999]).
Although "[r]eversal is an ill-suited remedy for prosecutorial misconduct" (People vGalloway, 54 NY2d 396, 401 [1981]), it is nevertheless mandated when the conduct of theprosecutor "has caused such substantial prejudice to the defendant that he [or she] has beendenied due process of law. In measuring whether substantial prejudice has occurred, one mustlook at the severity and frequency of the conduct, whether the court took appropriate action todilute the effect of that conduct, and whether review of the evidence indicates that without theconduct the same result would undoubtedly have been reached" (People v Mott, 94AD2d 415, 419 [1983]). Upon our review of the prosecutor's misconduct in this case, we agreewith defendant that reversal is required. Present—Martoche, J.P., Smith, Centra, Faheyand Pine, JJ.