| People v Mattocks |
| 2012 NY Slip Op 08039 [100 AD3d 930] |
| November 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AbdulMattocks, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (JoelGoldberg, J.), rendered October 27, 2010, convicting him of manslaughter 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, andthe matter is remitted to the Supreme Court, Kings County, for a new trial.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish his guiltof manslaughter in the second degree beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt on theconviction of manslaughter in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
However, although the following issues are unpreserved for appellate review (seeCPL 470.05 [2]; People v Heyward,50 AD3d 699, 700 [2008]; People vOsorio, 49 AD3d 562, 563-564 [2008]), upon the exercise of our interest of justicejurisdiction (see CPL 470.15 [3] [c]; People v Broadwater, 116 AD2d 1022,1022-1023 [1986]; see also People vEngstrom, 86 AD3d 580, 581 [2011]; People v Barker, 183 AD2d 835, 835[1992]), we agree with the defendant that the prosecutor's improper impeachment of her ownwitness in violation of CPL 60.35 (see People v Fitzpatrick, 40 NY2d 44, 51-53 [1976];People v Andre, 185 AD2d 276, 276-277 [1992]; People v Comer, 146 AD2d794, 794-795 [1989]; cf. People v Faulkner, 220 AD2d 525, 526 [1995]; People vMagee, 128 AD2d 811, 811 [1987]) and her improper use of such impeachment materialduring summation, together with related errors of the court with respect to the impeachmentmaterial, had the cumulative effect of depriving the defendant of his due process right to a fairtrial (see People v Andre, 185 AD2d at 277-278; see also People v Engstrom, 86AD3d at 581). Accordingly, the judgment must be reversed and the matter remitted to theSupreme Court, Kings County, for a new trial. Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.