| People v Epolito |
| 2012 NY Slip Op 08885 [101 AD3d 1603] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RichardEpolito, Appellant. |
—[*1] Richard Epolito, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered May 15, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law and a new trial is granted.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of robbery inthe second degree (Penal Law § 160.10 [2] [a]), defendant contends in his main and pro sesupplemental briefs that he was deprived of a fair trial based on, inter alia, prosecutorialmisconduct on summation. Although that contention is not preserved for our review (seeCPL 470.05 [2]), we nevertheless exercise our power to review it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). During summation, the prosecutor improperlyvouched for the credibility of prosecution witnesses (see People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied15 NY3d 954 [2010]; People v Tolbert, 198 AD2d 132, 133 [1993], lv denied 83NY2d 811 [1994]). We reject the People's contention that the prosecutor's comments duringsummation were a proper response to the summation of defense counsel (cf. People vHalm, 81 NY2d 819, 821 [1993]). We therefore agree with defendant that the cumulativeeffect of the prosecutor's improper comments during summation deprived defendant of his rightto a fair trial, requiring reversal (seePeople v Pagan, 2 AD3d 879, 880 [2003]).
Defendant further contends in his main brief that Supreme Court erred in denying his motionto suppress the testimony related to his identification on the ground that the photo array wasunduly suggestive. We reject that contention. Although defendant's photo was the only one in thearray showing a man with "salt-and-pepper" hair, the other photos showed men who appear to beof the same race and who had facial characteristics that were similar to those of defendant(see People v Corchado, 299 AD2d 843, 844 [2002], lv denied 99 NY2d 581[2003]). Defendant's contention in his main brief with respect to the jury instruction is notpreserved for our review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19[1995]), and we decline to exercise our power to [*2]review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
In light of our decision to grant a new trial, we do not address defendant's remainingcontentions in his main and pro se supplemental briefs. Present—Centra, J.P., Peradotto,Lindley, Sconiers and Martoche, JJ.