| People v Spence |
| 2012 NY Slip Op 01489 [92 AD3d 905] |
| February 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Spence, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Donald Berk ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered September 20, 2010, convicting him of criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial (Grella, J.), after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress identification testimony.
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.
Contrary to the defendant's contention, the pretrial lineup identification was not undulysuggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US833 [1990]). The photographs taken of the lineup reflect that the slight differences in skin tonebetween the defendant and the fillers were not so apparent as to orient the viewer toward thedefendant as the perpetrator of the crimes charged (id.; see People v Alonge, 74 AD3d1354 [2010]). "Skin tone is only one of the factors to be considered in deciding 'reasonablesimilarity,' and differences in skin tone alone will not render a lineup unduly suggestive" (People v Villacreses, 12 AD3d624, 625 [2004], quoting People v Miller, 199 AD2d 422, 423 [1993]; see Peoplev Pointer, 253 AD2d 500 [1998]). Additionally, we do not find that the presence of a smalltattoo on the side of the defendant's face rendered the lineup unduly suggestive (see People vChipp, 75 NY2d at 336; cf. People vJiminez, 22 AD3d 423 [2005]).
However, we find that improper remarks by the prosecutor during summation deprived thedefendant of a fair trial. The prosecutor improperly vouched for a witness and implied that thewitness faced retribution from the defendant when he stated, over objection, that the witnesstestified "not knowing what the ramifications . . . would be for herself and herfamily." A prosecutor may not bolster the credibility of a witness by "making himself [or herself]an unsworn witness and supporting his [or her] case by his [or her] own veracity and position"(People v Lovello, 1 NY2d 436, 439 [1956]; see People v Anderson, 83 AD3d 854, 856 [2011]). Here, thedefendant was prejudiced by the prosecutor's inflammatory and unsupported insinuation that thewitness was more credible because she testified despite some unspecified possibility ofretribution for doing so. There is no support in the record of any threats to the witness or herfamily and, moreover, the prosecutor's comments violated the rule that a prosecutor may not "tryto convey to the jury, by insinuation, suggestion or [*2]speculation, the impression that the defendant is guilty of othercrimes not in issue at the trial" (People v Ashwal, 39 NY2d 105, 110 [1976]).
Additionally, the prosecutor made improper remarks relating to the defendant's tattoos. Thedefendant introduced evidence that he has tattoos on his arms in order to undermine thecredibility of a witness who testified that she saw him at the crime scene holding a gun andwearing a t-shirt, but could not remember whether the man she saw had tattoos on his arms. Thetattoos, which depicted, among other things, a smoking gun, bullets, and the words "gangsterlife," may have posed some self-created prejudice to the defendant in and of themselves, a riskthe defendant had to bear by putting them in evidence. However, the prosecutor's summationcrossed the bounds of permissible rhetoric. Specifically, it was improper for the prosecutor to, incompleting his analogy that if it "walks like a duck" and "looks like a duck," then "it's a duck,"argue that the violent nature of the defendant's tattoos established his identity as the person seenin possession of the gun. Since there was no evidence from any eyewitness that the person seen atthe crime scene had tattoos, the only possible purpose of these comments would have been toimproperly argue that it was more likely that the defendant had committed the crime because ofhis bad character, which the prosecutor constructed for the jury from the violent nature of thedefendant's tattoos (see People v Ciervo, 123 AD2d 393, 396 [1986]; see also People v Bodden, 82 AD3d781, 784 [2011]).
Under the circumstances of this case, since it cannot be said that there is no significantprobability that the verdict would have been different absent the cumulative, prejudicial effect ofthese errors, we cannot deem them harmless (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Anderson, 83 AD3d at 857).
The defendant's remaining contentions are academic. Dillon, J.P., Florio, Chambers and Lott,JJ., concur.