| People v Ortiz |
| 2010 NY Slip Op 00387 [69 AD3d 490] |
| January 21, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LuisOrtiz, Appellant. |
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Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered December 12,2007, convicting defendant, after a jury trial, of burglary in the second degree, and sentencinghim, as a persistent violent felony offender, to a term of 20 years to life, unanimously reversed,on the law and as a matter of discretion in the interest of justice, and the matter remanded for anew trial.
On cross-examination of defendant, the prosecutor improperly attempted to impeachdefendant with his supposed dishonesty in initially entering pleas of not guilty in prior casesfollowed by allegedly belated pleas of guilty (see People v Garcia, 169 AD2d 358,361-364 [1991], lv denied 79 NY2d 857 [1992]). As in Garcia, "the tenor of theprosecutor's questioning of the defendant could not help but mislead the jury concerning the trueimport of defendant's prior pleas of not guilty," which were not the equivalent of "factualassertion[s] of innocence" (id. at 361). This questioning not only tended to draw animproper inference of dishonesty, but also violated the court's Sandoval ruling, whichonly permitted elicitation of the existence of defendant's prior convictions. As counselspecifically argued, and as the court itself had initially agreed, defendant's simple mention ondirect examination that he had pleaded guilty in one of his previous cases did not open the doorto any questioning going beyond the Sandoval ruling. This casual remark cannot beviewed as suggesting to the jury that defendant's failure to plead guilty in the case on trial wassome proof of innocence. To the extent that defendant went on to discuss his motivation forentering guilty pleas in other cases, and the timing of such pleas, this was entirely the product ofthe prosecutor's improper line of cross-examination, which delved into whether defendant'spractice was to "step up and take responsibility," and then attacked him for not doing so at theinception of each of his prior cases.
The prosecutor also erred when, on cross-examination of defendant, he introduced a mugshotof defendant's nontestifying girlfriend and repeatedly referred to her criminal history. Thisevidence was totally irrelevant, notwithstanding the prosecutor's meritless argument that thegirlfriend's recent arrest tended to support a missing witness inference in that it somehow relatedto defendant's ability to locate her. This evidence had no [*2]purpose but to suggest that defendant was associated with adisreputable person (see People v Cheatham, 158 AD2d 934, 935 [1990]).
Additionally, during summation, the prosecutor engaged in a an impermissible, prejudicialpattern of conduct (see e.g. People v Bowie, 200 AD2d 511, 513 [1994], lv denied83 NY2d 869 [1994]), including extensive use of defendant's prior record as evidence ofcriminal propensity, along with comments that defendant "knows he did it," and that he waswaiting for the jury to "give him his razor back and let him walk out the door." Although none ofdefendant's challenges to the prosecutor's summation are preserved, we exercise our discretion toreview them in the interest of justice.
The cumulative effect of the prosecutor's cross-examination and summation errors depriveddefendant of a fair trial (see People v Calabria, 94 NY2d 519, 523 [2000]). This caseturned on a question of credibility, in which defendant claimed that the incident was analtercation rather than a home invasion, and the evidence was not so overwhelming as to renderthe misconduct harmless.
In view of this determination, we do not reach any other issues. Concur—Gonzalez,P.J., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.