| People v Morgan |
| 2013 NY Slip Op 07288 [111 AD3d 1254] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRichard Morgan, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered July 20, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree, grand larceny in the third degree, criminal possession of aforged instrument in the second degree and criminal possession of a controlled substancein the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and as a matter of discretion in the interest of justice, a new trial is granted oncounts one and three of the indictment, and counts two and four of the indictment aredismissed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the second degree (Penal Law § 140.25 [2]), grand larceny inthe third degree (former § 155.35), criminal possession of a forged instrument inthe second degree (§ 170.25), and criminal possession of a controlled substance inthe seventh degree (§ 220.03). Defendant was convicted upon a retrial after wereversed the first judgment of conviction based on a Batson violation (People v Morgan, 75 AD3d1050, 1051-1053 [2010], lv denied 15 NY3d 894 [2010]). Although on theprior appeal we did not need to address on the merits defendant's contention that he wasdeprived of a fair trial by prosecutorial misconduct inasmuch as we granted a new trialon Batson grounds, we nevertheless "note[d] our strong disapproval of themisconduct of the prosecutor on summation in improperly shifting the burden of proofonto defendant and in improperly vouching for the credibility of the People's witnesses"(id. at 1053). We noted that, "[a]mong other objectionable remarks, theprosecutor stated on summation that '[t]he only way that you can find the defendant notguilty of burglary is if you believe that he falsely admitted to a crime that he didn'tcommit[,]' " and that, " 'to believe what [defendant] want[s] you to believe, you have toconclude that [two police detectives] are liars. Two police officers with forty years ofexperience between them . . . They're going to come in here and perjurethemselves on the stand, and risk prosecution themselves, for what? For this?' "(id. at 1053-1054).
On this appeal, defendant again contends that reversal is warranted based uponprosecutorial misconduct on summation, and we agree. Despite our prior admonition ondefendant's first appeal, the prosecutor on retrial repeated some of the impropercomments from the first summation and made additional comments that we conclude areimproper. The [*2]prosecutor improperly denigrated thedefense and defense counsel, repeatedly characterizing the defense as "noise,""nonsense" and a "distraction [ ]," and arguing that defense counsel was fabricating factsand attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013],lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lvdenied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]). In one ofthe more troubling passages in her summation, the prosecutor stated, "You are here forthe People of the State of New York versus [defendant] . . . It is not aboutwho isn't sitting at the defense table, it is about who is. Are you buying it? Because that'swhat they're selling. Theories disguised as arguments and posturing as evidence. And I'mnot suggesting the defendant has the burden of proving anything because the burden restswith the People, but by the same token, it doesn't give counsel license to make stuff upand pretend that it's evidence. They all have something in common. These theories,they're noise, they're nonsense. They want you to be distracted. Do not be distracted."
In addition, the prosecutor misstated the evidence and the law (see People v Riback, 13 NY3d416, 423 [2009]; Spann, 82 AD3d at 1015-1016; People vHetherington, 229 AD2d 916, 917 [1996], lv denied 88 NY2d 1021 [1996]),made an inappropriate "guilt by association" argument (see People v Parker, 178AD2d 665, 666 [1991]), and improperly characterized the case as "about finding the truthand it is as simple as that" (seePeople v Ward, 107 AD3d 1605, 1606-1607 [2013]; People vBenedetto, 294 AD2d 958, 959 [2002]; People v Smith, 184 AD2d 326, 326[1992], lv denied 80 NY2d 910 [1992]). Perhaps the prosecutor's most egregiousmisconduct occurred when she made herself an unsworn witness and injected theintegrity of the District Attorney's office into the case (see People v Moye, 12 NY3d743, 744 [2009]; People v Clark, 195 AD2d 988, 990 [1993]). With respectto a chief prosecution witness, who did not testify at the first trial and who turned herselfin on a warrant the day prior to her testimony, the prosecutor stated: "When she arrived atour offices, she was escorted over to Buffalo City Court because she had a warrant,because that's what you have to do, and she was released on her own recognizance by thejudge. And let me be very clear here when we talk about promises to witnesses orbenefits that they received. Let me be very clear. Neither myself, nor [the otherprosecuting attorney], nor anyone from our office, ever promised her anything inexchange for her testimony" (emphasis added). The Court of Appeals condemnedsimilar comments by the prosecutor in People v Carter (40 NY2d 933, 934-935[1976]).
In light of the foregoing, we conclude that reversal is warranted based on thepervasive and at times egregious misconduct on summation, particularly in light of ourprevious admonition to the People in this matter (see Spann, 82 AD3d at1015-1016; People vWlasiuk, 32 AD3d 674, 681 [2006], lv dismissed 7 NY3d 871 [2006]).In short, as we said more than 15 years ago, "[i]t would seem, by now, unnecessary toemphasize again that the duty of the prosecutor is to honor established legal principles,not to secure a conviction by any and all means" (People v Paul, 229 AD2d 932,933 [1996]).
We further agree with defendant that the evidence is legally insufficient to supportthe conviction of grand larceny in the third degree because there is insufficient evidencethat the value of the stolen property exceeded $3,000 (see Penal Law former§ 155.35). Although defendant failed to preserve that contention for our review(see People v Snyder, 100AD3d 1367, 1367-1368 [2012], lv denied 21 NY3d 1010 [2013]), wenevertheless exercise our power to address it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). The value of stolen property is "the marketvalue of the property at the time and place of the crime, or if such cannot be satisfactorilyascertained, the cost of replacement of the property within a reasonable time after thecrime" (Penal Law § 155.20 [1]). It is well established that "a victim must providea basis of knowledge for his [or her] statement of value before it can be accepted aslegally sufficient evidence of such value" (People v Lopez, 79 NY2d 402, 404[1992]), and that "[c]onclusory statements and rough estimates of value are notsufficient" (People vLoomis, 56 AD3d 1046, 1047 [2008]).[*3]
Here, the stolen property consisted of aPlayStation video game console, video games, DVDs, a laptop, an external hard drive,and other miscellaneous computer equipment. The victim testified that the value of thelaptop was "about $2,000" and that he "had it for less than a year" before the burglary,but he did not testify as to the purchase price, the condition of the laptop, or the cost toreplace it (see People vGeroyianis, 96 AD3d 1641, 1643-1644 [2012], lv denied 19 NY3d 996[2012], reconsideration denied 19 NY3d 1102 [2012]; People vVandenburg, 254 AD2d 532, 534 [1998], lv denied 93 NY2d 858 [1999]).As for the PlayStation, the victim testified that it cost $150 in 2005. Although a "victimis competent to supply evidence of original cost" (People v Stein, 172 AD2d1060, 1060 [1991], lv denied 78 NY2d 975 [1991]), "evidence of the originalpurchase price, without more, will not satisfy the People's burden" (People vGonzalez, 221 AD2d 203, 204 [1995]). With respect to the remaining items of stolenproperty, the victim "provided only rough estimates of value . . . withoutsetting forth any basis for his estimates . . . , and thus the evidence also islegally insufficient to establish the value of those remaining items" (Geroyianis,96 AD3d at 1645 [internal quotation marks omitted]; see People v Sutherland, 102 AD3d 897, 898-899 [2013]).On this record, we cannot conclude that " 'the jury ha[d] a reasonable basis for inferring,rather than speculating, that the value of the property exceeded the statutory threshold' "of $3,000 (People v Brink,78 AD3d 1483, 1484 [2010], lv denied 16 NY3d 742 [2011],reconsideration denied 16 NY3d 828 [2011]; see Vandenburg, 254AD2d at 534). We therefore dismiss count two of the indictment.
We likewise agree with defendant that the evidence is legally insufficient to supporthis conviction of criminal possession of a controlled substance in the seventh degree, ascharged in the fourth count of the indictment. The indictment alleged that "on orabout the 2nd day of September, 2005, [defendant] knowingly and unlawfullypossessed a controlled substance, to wit: cocaine" (emphasis added). The evidence thatdefendant possessed a controlled substance on September 2, 2005 consisted solely of thetestimony of a witness and defendant's statement that they smoked crack cocaine togetheron that date, but at different times. As the People correctly concede, such evidence islegally insufficient to support a conviction of criminal possession of a controlledsubstance (see generally Peoplev Martin, 81 AD3d 1178, 1179-1180 [2011], lv denied 17 NY3d 819[2011], reconsideration denied 17 NY3d 904 [2011]). Although the evidence islegally sufficient to establish that defendant possessed a controlled substance onSeptember 27, 2005, the date of his arrest, the indictment did not charge defendant withdrug possession on that date and, contrary to the People's contention, the discrepancycannot be characterized as a mere "variance" in the date of the offense (see People vLa Marca, 3 NY2d 452, 458-459 [1957], remittitur amended 3 NY2d 942[1957], cert denied 355 US 920 [1958], rearg denied 4 NY2d 960[1958]). We therefore dismiss count four of the indictment (see generally People vOberlander, 60 AD3d 1288, 1289 [2009]).
Contrary to the further contention of defendant, however, we conclude that theevidence is legally sufficient to support the conviction of burglary in the second degreeand criminal possession of a forged instrument in the second degree and, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict with respect to those counts isnot against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
In light of our determination, we do not address defendant's remaining contentions.Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.