| People v Anderson |
| 2011 NY Slip Op 03078 [83 AD3d 854] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KevinAnderson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy,J.), rendered September 12, 2008, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, anda new trial is ordered.
During the early morning hours of September 19, 2004, the victim was shot to death outsideof a party being held at an apartment in Queens. Six days after the shooting, a 17-year-old whohad attended the party identified the defendant from a lineup as the man he had seen engage in alengthy argument with the victim and later shoot him. When questioned by the police, thedefendant, who had been the victim's close friend, initially denied that he had attended the party.Although the defendant later admitted that he had been present, he claimed that the victim hadargued with two other men, and that these unidentified men then left the party. According to thedefendant, after these two men returned to the party, people suddenly began running out of theapartment, and the defendant heard a gunshot. Other guests then told the defendant that thevictim had been shot.
At a jury trial conducted over three years after the shooting, the primary prosecution witnesswas the young man who had identified the defendant as the shooter. The eyewitness admitted thatin the intervening years, he had been arrested on gun and marijuana possession charges, and thathe had signed an agreement with the Queens County District Attorney's Office offering toprovide information about the homicide in the hope of receiving a more favorable disposition ofthe charges against him. The gun possession charge against the eyewitness was ultimatelydismissed, and he pleaded guilty to marijuana possession. However, a Deputy ExecutiveAssistant District Attorney testified that his office had not actually given the eyewitness a pleaagreement in exchange for information about the homicide, and that he had moved for dismissalof the gun charge solely because he lacked confidence that this charge could be sustained. Thedefendant also took the stand in his own behalf, and gave testimony suggesting, in accordancewith his statements to the police, that the victim had been shot by one of the unidentified men hehad argued with earlier in the evening. At the conclusion of the trial, the jury returned a verdictconvicting the defendant of murder in the second degree and criminal possession of a weapon inthe second degree.[*2]
On appeal, the defendant contends that he was deprivedof a fair trial by both his cross-examination by the prosecutor, and by certain improper andprejudicial comments made by the prosecutor during summation. Although the defendant'sobjections were not preserved for appellate review, we review them in the exercise of our interestof justice jurisdiction (see CPL 470.15 [6] [a]), and conclude that the cumulative effect ofthe prosecutor's misconduct during cross-examination and on summation deprived the defendantof a fair trial.
The trial court's Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]) permitted the prosecutor to inquire into the underlying facts of the defendant's priornarcotics conviction arising from a June 2002 drug sale. However, rather than confining hisinquiry to the facts relevant to show that the defendant placed his own interest above that ofsociety by selling narcotics to an undercover police officer in June 2002, the prosecutor asked aseries of irrelevant and prejudicial questions concerning how the drugs were packaged, the sourceof the drugs, the name of the defendant's supplier, where the supplier lived, what the supplierlooked like, and what financial arrangements the defendant had with his supplier. Theprosecutor's repeated and extensive questioning regarding the details of the June 2002 saleexceeded the proper scope of the Sandoval ruling, and "were clearly intended to show thedefendant's criminal propensity, and, as such, were improper" (People v Hill, 193 AD2d619, 619 [1993]; see People v Wright, 41 NY2d 172, 175 [1976]; People vJames, 218 AD2d 709, 710 [1995]; People v Gunther, 175 AD2d 262, 264 [1991]).Moreover, while the Sandoval ruling also permitted the prosecutor to inquire about thefact that the defendant had three other drug convictions, in the course of cross-examining himabout the existence of these convictions, the prosecutor repeatedly demanded that the defendantacknowledge choosing to do "what's best for [the defendant]" instead of choosing to abide by thelaw, thus inviting the jurors to focus their attention on the defendant's propensity for criminalconduct.
Furthermore, although a prosecutor should not support his or her case by his or her own oranyone else's "veracity and position" (People v Lovello, 1 NY2d 436, 439 [1956]; see People v Moye, 12 NY3d 743,744 [2009]), the prosecutor did so here by effectively vouching on summation for the conductand credibility of two witnesses based upon their positions. First, in discussing the testimony of aformer Assistant District Attorney who was present at the lineup identification procedure, theprosecutor emphasized that this individual was now a New York City Councilman, andcommented that the councilman was at the lineup to make sure that it was fair, and that the rightperson was identified. Second, in highlighting the testimony of the Deputy Executive AssistantDistrict Attorney who denied that the information provided by the eyewitness played a role in thedismissal of a gun possession charge against him, the prosecutor focused on this individual'shigh-level position in the District Attorney's Office of a "county of millions," and stressed thathis credentials included "lectures about ethical considerations of prosecutors."
On summation, the prosecutor also exceeded the bounds of permissible advocacy andimproperly denigrated the defense by likening the defendant's testimony to a "script" composedof "[r]ehearsed line[s]," calling the defendant's explanation for why he initially denied attendingthe party a "[b]old-face[d] lie," and making other comments suggesting that the defendant waslying (see People v Gordon, 50AD3d 821, 822 [2008]; People vBrown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell,307 AD2d 385, 387 [2003]; People v Skinner, 298 AD2d 625, 626-627 [2002];People v Walters, 251 AD2d 433, 434 [1998]). The prosecutor additionallymischaracterized the defendant's testimony by claiming that the defendant went home to sleepafter learning of his friend's death, in order to support an unnecessarily inflammatory argumentthat the defendant was as remorseless as a hunter who kills a deer (see People v Anderson, 35 AD3d871, 872 [2006]; People v Walters, 251 AD2d at 434).
Since it cannot be said that there is no significant probability that the verdict would havebeen different absent the cumulative prejudicial effect of these errors, we cannot deem themharmless (see People v Grant, 7NY3d 421, 424 [2006]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Slide, 76 AD3d 1106,1110-1111 [2010]; People v Gibian,76 AD3d 583, 589 [2010]). Covello, J.P., Florio, Eng and Chambers, JJ., concur.