| People v Griffin |
| 2015 NY Slip Op 01346 [125 AD3d 1509] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDarrell J. Griffin, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Joan S. Kohout, A.J.),rendered August 16, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first 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 and a new trial isgranted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]), defendant contendsthat he was deprived of a fair trial by prosecutorial misconduct. We agree. Althoughdefendant failed to preserve his contention for our review with respect to certain allegedinstances of prosecutorial misconduct (see CPL 470.05 [2]), we neverthelessexercise our power to review defendant's contention with respect to those instances as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Weconclude that defendant is entitled to a new trial.
The prosecutor began her summation by improperly characterizing the People's caseas "the truth" and denigrating the defense as a diversion (see People v Miller, 104 AD3d1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People vBenedetto, 294 AD2d 958, 959-960 [2002]; see also People v Mehmood, 112 AD3d 850, 853 [2013]).In addition, the prosecutor implied that defendant bore the burden of proving that thecomplainant had a motive to lie, thereby impermissibly shifting the burden of proof todefendant (see People vCasanova, 119 AD3d 976, 977-978 [2014]; People v Pagan, 2 AD3d 879, 880 [2003];Benedetto, 294 AD2d at 959-960; People v Williams, 112 AD2d 177, 179[1985]).
Perhaps most egregiously in this one-witness case where credibility was paramount,the prosecutor repeatedly and improperly vouched for the veracity of the complainant (see People v Moye, 12 NY3d743, 744 [2009]; People vWalker, 119 AD3d 1402, 1404 [2014]; People v Forbes, 111 AD3d 1154, 1158 [2013]). Theprosecutor asked the jury "to listen carefully to the 911 call. It may not clearly state whathappened, but statements that [the complainant] made like, 'I'm bugging, but I tried tocatch him, that's why I left,' are examples of the ring of truth." Defense counsel objected,and the objection was sustained. Nonetheless, the prosecutor continued: "I submit to youthe (complainant's statements) are truthful." The prosecutor also bolstered thecomplainant's credibility by making herself an unsworn witness in the case (see People v Fisher, 18 NY3d964, 966 [2012]; Moye, 12 NY3d at 744; Forbes, 111 AD3d at 1158;People v Spence, 92 AD3d905, 905-906 [2012]). In addressing inconsistencies between the complainant'stestimony and his earlier statement to the police, the prosecutor argued that thecomplainant made only "[o]ne inconsistent statement, from talking to the police andtalking to me" (emphasis added). The prosecutor's remark suggests that thecomplainant made numerous prior consistent statements to the police and to theprosecutor herself, and we conclude that such suggestion has no basis in the record(see Fisher, 18 NY3d at 966; People v Ashwal, 39 NY2d 105, 109-110[1976]).
[*2] The prosecutor also improperlyappealed to the sympathies of the jury by extolling the complainant's "bravery" in callingthe police and testifying against defendant (see People v Smith, 288 AD2d 496,497 [2001]; People v Andre, 185 AD2d 276, 278 [1992]; see generally People vBallerstein, 52 AD3d 1192, 1194 [2008]). The prosecutor told the jurors that itwas "not an easy decision" for complainant to call the police, and asked them to "hang[their] hat on . . . [the complainant]'s bravery by coming in front of you."The prosecutor argued that the neighborhood where the crime occurred and where thecomplainant's family worked "is an anti-police atmosphere." After defense counsel'sobjection to that comment was sustained, the prosecutor protested that "it was a statementin evidence" when, in fact, that testimony had been stricken from the record, and CountyCourt had specifically warned the prosecutor not "to go into what this area is like." Theprosecutor nonetheless continued her summation by asking the jurors to "[u]se [their]common sense to think about whether or not this happened and why there's no otherwitnesses" (emphasis added). The prosecutor argued that the complainant "issomeone who knows the game. He knows the neighborhood, and he knows what wouldhave been the easy thing to do, and I submit to you that easy thing to do was not to call911 that day." She continued: "So please tell [the complainant] he did the right thing bycalling 911 and telling them one man's word is enough. Tell them that he is brave toreport this." The prosecutor ended her summation by urging the jury to "tell [thecomplainant] that his truthfulness is enough to convict the defendant" by returning aguilty verdict.
Although "[r]eversal is an ill-suited remedy for prosecutorial misconduct"(People v Galloway, 54 NY2d 396, 401 [1981]), it is nevertheless mandatedwhen the conduct of the prosecutor "has caused such substantial prejudice to thedefendant that he [or she] has been denied due process of law. In measuring whethersubstantial prejudice has occurred, one must look at the severity and frequency of theconduct, whether the court took appropriate action to dilute the effect of that conduct,and whether review of the evidence indicates that without the conduct the same resultwould undoubtedly have been reached" (People v Mott, 94 AD2d 415, 419[1983]). Here, misconduct permeated the trial and was at times severe. In addition to themisconduct on summation, the prosecutor asked improper questions and attempted toelicit irrelevant and inflammatory statements during her direct examination of thePeople's witnesses (seegenerally People v Morrice, 61 AD3d 1390, 1391 [2009]). The prosecutor alsocalled a police witness for the sole purpose of testifying about defendant's arrest, forwhich she was admonished by the court. Although the court sustained many of defensecounsel's objections, "other improper remarks passed without objection oradmonishment, and few curative instructions were given" (Casanova, 119 AD3dat 979). We therefore "cannot say that any resulting prejudice was alleviated"(id.; see People v Clark, 195 AD2d 988, 991 [1993]). In anyevent, even where the trial court repeatedly sustains a defendant's objections and instructsthe jury to disregard certain remarks by the prosecutor, "[a]fter a certain point,. . . the cumulative effect of a prosecutor's improper comments. . . may overwhelm a defendant's right to a fair trial" (People v Riback, 13 NY3d416, 423 [2009]).
Finally, inasmuch as the evidence in this case was far from overwhelming, we cannotconclude that "the same result 'would undoubtedly have been reached' without themisconduct" (Clark, 195 AD2d at 991; see Fisher, 18 NY3d at 966;People v Cotton, 242 AD2d 638, 639 [1997]). Present—Peradotto, J.P.,Carni, Sconiers and Whalen, JJ.