| People v Caparella |
| 2011 NY Slip Op 02896 [83 AD3d 730] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Ronald Caparella, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Andrew Fukuda ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz,J.), rendered December 1, 2009, convicting him of forcible touching, upon a jury verdict, andimposing 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, Nassau County, for a new trial inaccordance herewith.
The defendant was charged with two counts of sexual abuse in the third degree, three countsof criminal sexual act in the third degree, and one count of forcible touching arising from threeseparate incidents involving three male complainants. After a jury trial, the defendant wasconvicted of forcible touching related to the third complainant. There was a "hung jury" as to theremaining counts, which were eventually dismissed.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying the defendant's pretrial motion for severance of the cases involving two ofthe complainants from the case involving the third (see CPL 200.20; People vLane, 56 NY2d 1, 8-9 [1982]; People v Montalvo, 34 AD3d 600 [2006]; People v Berta,213 AD2d 659, 660 [1995]; cf. People v Shapiro, 50 NY2d 747 [1980]). The SupremeCourt directed that the evidence of each charge was to be separately presented, and the jurorswere to be instructed that they must consider each count separate and apart from any other count.
However, in light of the prosecutor's improper comments, the defendant is entitled to a newtrial. Indeed, although the jurors were properly instructed to consider each case separately, theprosecutor improperly combined the three incidents during opening, summation, and questioningof the witnesses (see People vSayers, 64 AD3d 728, 733 [2009]; People v Pinkas, 156 AD2d 485, 486 [1989];People v Bonaparte, 98 AD2d 778 [1983]). Defense counsel moved for a mistrialmultiple times and, despite admonitions by the trial court, the prosecutor persisted. Hence, therewas a substantial risk that the defendant was deprived of a fair trial (see People v Ashwal,39 NY2d 105 [1976]; People v Castillo, 47 NY2d 270, 274 [1979]; People vPinkas, 156 AD2d at 486).[*2]
The prosecutor made a comment revealing a statementmade by the defendant upon his arrest, which had been suppressed by the Supreme Court, whichcould have led the jury to believe that the defendant had committed similar crimes in the past.The prosecutor also commented, "[it] didn't end with [the first victim], it didn't end with [thesecond victim], and certainly didn't start with [the third victim], you have the power, each andevery one of you, to end it here with a verdict of guilty on each and every charge."
The prosecutor continually referred to the three complainants together. The prosecutor statedthat the defendant "took advantage in each case of each man. Each man . . . all lettheir bodies, their trust, their vulnerability in the hands of one man, this defendant. And on threeseparate times he violated their trust."
Finally, the prosecutor stated, "[a]s you sat here throughout the trial you saw three verydifferent men take that witness stand . . . But each one of them was brought togetherby one man, [the defendant]."
To the extent that claims as to any of the prosecutor's improper comments are not preservedfor appellate review, we reach them as a matter of discretion in the exercise of our interest ofjustice jurisdiction (see CPL 470.05; People v Medina, 53 NY2d 951 [1981]; People v Gordon, 50 AD3d 821,822 [2008]; People v Almonte, 23AD3d 392, 394 [2005]; see alsoPeople v Ortiz, 69 AD3d 490, 491 [2010]). Angiolillo, J.P., Florio, Leventhal andMiller, JJ., concur.