| People v Hicks |
| 2012 NY Slip Op 07446 [100 AD3d 1379] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Aaron Hicks,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered November 3, 2011. The judgment convicted defendant, upon a jury verdict, of criminalpossession of marihuana in the second degree and operating a motor vehicle with excessivelytinted windows.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalpossession of marihuana in the second degree (Penal Law § 221.25) and operating a motorvehicle with excessively tinted windows (Vehicle and Traffic Law § 375 [12-a] [b] [2]),defendant contends that the evidence is legally insufficient to support the conviction of criminalpossession of marihuana because the People failed to establish that he possessed the bags ofmarihuana at issue. We reject that contention (see generally People v Bleakley, 69 NY2d490, 495 [1987]). We agree with defendant, however, that he was denied a fair trial byprosecutorial misconduct.
We note at the outset that, as the People correctly conceded at oral argument, the prosecutorengaged in misconduct by asking defendant on cross-examination to characterize prosecutionwitnesses as liars (see People vWashington, 89 AD3d 1516, 1516-1517 [2011], lv denied 18 NY3d 963 [2012];People v McClary, 85 AD3d1622, 1624 [2011]) and, indeed, the record establishes that she repeatedly did so. Defensecounsel eventually objected to that line of questioning, but Supreme Court overruled theobjection and the improper questions continued. The prosecutor then exacerbated the harmarising from the prior misconduct by stating during her summation that the defense theory wasthat "the police are liars."
Unlike the dissent, we cannot conclude that defendant opened the door to the prosecutor'sconduct by clearly suggesting that the prosecution witnesses had fabricated their testimony (cf. People v Head, 90 AD3d 1157,1158 [2011]; People v Buel, 53AD3d 930, 931-932 [2008]). At no time during his direct testimony did defendant suggestthat the police officers fabricated their testimony and, when asked on cross-examination whetherhe believed that the police had a reason to frame him, [*2]defendant responded, "I don't know the reason, I don't knowwhat's—I don't know why I'm here today." Although defendant's testimony with respect toseveral matters was at odds with the police officers' testimony, it does not necessarily follow thathe was thereby suggesting that the police officers had fabricated their testimony.
We further conclude that the prosecutor also engaged in misconduct during her summationby stating that "there's been no evidence that there was any plea bargain available in this case."The record demonstrates that a plea bargain had in fact been offered in writing to defendant bythat same prosecutor, and that defendant rejected the offer. Although the prosecutor wastechnically correct that no evidence of the plea offer had been admitted at trial, it may be readilyinferred that the prosecutor intended to mislead the jury on this point and was successful in doingso. We also agree with defendant that the prosecutor engaged in misconduct by asking defendanton cross-examination whether he knew about the criminal past of his companion (see Peoplev Cheatham, 158 AD2d 934, 935 [1990]; People v Shivers, 63 AD2d 708, 709[1978]). Again, defense counsel's objection to that questioning was overruled.
We conclude that "the cumulative effect of the prosecutor's cross-examination andsummation errors deprived defendant of a fair trial" (People v Ortiz, 69 AD3d 490, 491 [2010]; see People vCalabria, 94 NY2d 519, 523 [2000]). We therefore reverse the judgment of conviction andgrant a new trial, " 'without regard to any evaluation as to whether the errors contributed to thedefendant's conviction. The right to a fair trial is self-standing and proof of guilt, howeveroverwhelming, can never be permitted to negate this right' " (People v Fredrick, 53 AD3d 1088, 1089 [2008], quoting Peoplev Crimmins, 36 NY2d 230, 238 [1975]).
All concur except Scudder, P.J., and Smith, J., who dissent and vote to affirm in thefollowing memorandum.
Scudder, P.J., and Smith, J. (dissenting). We respectfully dissent. While we agree with themajority that the prosecutor engaged in misconduct by questioning defendant about hiscompanion's prior criminal history (see People v Cheatham, 158 AD2d 934, 935 [1990];People v Shivers, 63 AD2d 708, 709 [1978]), we do not agree that the prosecutorengaged in misconduct by asking defendant whether prosecution witnesses were lying. Indeed,we conclude that the People were incorrect in conceding at oral argument of this appeal that theprosecutor thereby engaged in misconduct. Rather, "[i]nasmuch as defendant's testimony duringboth direct and cross-examination clearly suggested that the People's witnesses had fabricatedtheir testimony, it was not improper for the prosecutor to ask him whether he believed that thePeople's witnesses had lied during their testimony" (People v Head, 90 AD3d 1157, 1158 [2011]; see People v Buel, 53 AD3d 930,931-932 [2008]). We also conclude that the prosecutor did not engage in misconduct by stating,in response to defendant's summation, that there had been "no evidence that there was any pleabargain available in this case." As the majority acknowledges, that statement was "technicallycorrect" and, because the jurors are required to make their determination based solely "on theevidence presented at . . . trial" (CJI2d[NY] Reasonable Doubt), we cannotconclude that the prosecutor's statement was improper.
Even assuming, arguendo, that the majority is correct that all of the prosecutor's challengedconduct was improper, we conclude that such conduct was not so pervasive or egregious as todeny defendant his right to a fair trial (see generally People v Kims, 96 AD3d 1595, 1598 [2012]).Inasmuch as none of defendant's remaining contentions has merit, we would affirm.Present—Scudder, P.J., Smith, Centra, Lindley and Martoche, JJ.