| People v Spann |
| 2011 NY Slip Op 02041 [82 AD3d 1013] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gregory Spann, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered December 8, 2008, convicting him of criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
On a motion by a defendant to suppress physical evidence, "the People have the burden ofgoing forward to show the legality of the police conduct in the first instance" (People vWhitehurst, 25 NY2d 389, 391 [1969]; see People v Blinker, 80 AD3d 619 [2011]; People v Hernandez, 40 AD3d777, 778 [2007]; People v Thomas, 291 AD2d 462, 463 [2002]; People vQuinones, 61 AD2d 765 [1978]). The defendant, however, "bears the ultimate burden ofproving, by a preponderance of the credible evidence, that the evidence should not be usedagainst him" (People v Thomas, 291 AD2d at 463; see People v Berrios, 28NY2d 361, 367 [1971]; People v Whitehurst, 25 NY2d at 391). "The credibilitydeterminations of the Supreme Court following a suppression hearing are entitled to greatdeference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Smith, 77 AD3d 980,981 [2010] [internal quotation marks omitted]; see People v Prochilo, 41 NY2d 759, 761[1977]; People v Blinker, 80 AD3d619 [2011]; People v Johnson,79 AD3d 905 [2010]; People vCastro, 73 AD3d 800, 800-801 [2010]; People v Shackleford, 57 AD3d 578 [2008]).
"Where a testifying officer claims to have seen that which common sense dictates could nothave been seen, courts have repeatedly deemed this testimony patently tailored to meetconstitutional objections" (People v Lebron, 184 AD2d 784, 787 [1992]; see People v Rutledge, 21 AD3d1125, 1126 [2005]; People v Lewis, 195 AD2d 523, 524 [1993]). Here, contrary tothe defendant's contention, the arresting officer's testimony at the pretrial hearing that heobserved, in plain view and without leaning into the car in question, the butt of a handgunprotruding from beneath the driver's seat while he was squatting in the space created by the openfront passenger-side door, was not incredible as a matter of law (see People v James, 19 AD3d 617,618 [2005]; People v Burgess, 168 AD2d 685, 686 [1990]; People v [*2]Kalish, 166 AD2d 610, 611 [1990]; People v Burke,146 AD2d 706, 706-707 [1989]). Moreover, the hearing testimony does not support thedefendant's contention that the officer's testimony was a fabrication tailored to nullifyconstitutional objections (see People vGlenn, 53 AD3d 622, 624-625 [2008]; People v James, 19 AD3d at 618;People v Burgess, 168 AD2d at 686; cf. People v Miret-Gonzalez, 159 AD2d647, 649 [1990]; People v Garafolo, 44 AD2d 86, 88 [1974]). Accordingly, the SupremeCourt properly denied that branch of the defendant's omnibus motion which was to suppress thehandgun.
However, the cumulative effect of the prosecutor's improper comments during summationrequires a new trial. While the defendant's claim regarding the comments made by the prosecutorduring summation is partially unpreserved for appellate review, we nevertheless review it in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People vBadine, 301 AD2d 178, 180 [2002]; Matter of Stagnar v Stagnar, 98 AD2d 983, 984[1983]).
"[I]n summing up to the jury, [the prosecutor] must stay within 'the four corners of theevidence' and avoid irrelevant and inflammatory comments which have a tendency to prejudicethe jury against the accused" (People v Bartolomeo, 126 AD2d 375, 390 [1987], quotingPeople v Ashwal, 39 NY2d 105, 109-110 [1976]). At trial, the arresting officer testifiedthat he observed the defendant "sweating very profusely" and his heart beating rapidly during thetraffic stop. The defendant presented medical evidence to establish that his perspiration and rapidheart rate were the result of hypertension. During summation, the prosecutor improperlycommented on the defendant's medical evidence by repeatedly referring to it as a "distraction," a"smokescreen," and "smoke and mirrors," while at the same time arguing in support of thePeople's case that the defendant's physical condition was evidence of consciousness of guilt (see People v Pagan, 2 AD3d 879,880 [2003]; People v Ortiz, 125 AD2d 502, 503 [1986]; People v Torres, 111AD2d 885, 886-887 [1985]; cf. People v Galloway, 54 NY2d 396, 399 [1981];People v Flores, 191 AD2d 306, 307 [1993]). The prosecutor also impermissibly shiftedthe burden of proof to the defendant by informing the jurors that if they did not find thedefendant's testimony "reasonable," they could not "form the basis of reasonable doubt" (seePeople v Pagan, 2 AD3d at 880; People v Bull, 218 AD2d 663, 665 [1995];People v Bonaparte, 98 AD2d 778 [1983]). Finally, the evidence presented at trialestablished that the arresting officer recovered the handgun from beneath the "front seat" of thecar. As there was no evidence to establish that the handgun was found beneath the frontpassenger seat as opposed to the front driver's seat, the prosecutor misstated the evidence duringsummation when he told the jury on 14 occasions that the handgun had been found beneath thefront passenger seat where the defendant was sitting (see People v Brown, 256 AD2d414, 416 [1998]; People v Cotton, 242 AD2d 638, 638-639 [1997]; People vCobb, 104 AD2d 656, 657 [1984]).
The cumulative effect of these improper comments deprived the defendant of a fair trial(see People v Calabria, 94 NY2d 519, 522 [2000]; People v Brown, 26 AD3d 392, 393 [2006]; People vPagan, 2 AD3d at 880; People v Cotton, 242 AD2d at 638-639).
In light of our determination, the defendant's contention that it was improper for theprosecutor to argue that the defendant had the benefit of hearing the People's proof beforetestifying has been rendered academic. Rivera, J.P., Dillon, Hall and Roman, JJ., concur.[Prior Case History: 21 Misc 3d 1141(A), 2008 NY Slip Op 52477(U).]