| People v Rowley |
| 2015 NY Slip Op 02988 [127 AD3d 884] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marc Rowley, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SholomJ. Twersky, and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered February 24, 2011, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Dwyer, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
The defendant was one of two passengers in the backseat of a vehicle which waspulled over in Brooklyn due to the failure of the driver to signal a turn. A gun wasrecovered from the car. After a jury trial, the defendant was convicted of criminalpossession of a weapon in the second degree.
"The credibility determinations of the Supreme Court following a suppressionhearing are entitled to great deference on appeal and will not be disturbed unless clearlyunsupported by the record" (People v Smith, 77 AD3d 980, 981 [2010] [internalquotation marks omitted]; seePeople v Wilson, 96 AD3d 980, 981 [2012]). Here, contrary to the defendant'scontention, the Supreme Court properly denied that branch of his omnibus motion whichwas to suppress the gun recovered during the traffic stop, as the police officer's testimonywas not incredible, patently tailored to nullify constitutional objections, or otherwiseunworthy of belief (see People vLewis, 117 AD3d 751 [2014]; People v Hobson, 111 AD3d 958, 959 [2013]; People vWilson, 96 AD3d at 981).
Although the defendant's contention that he was deprived of a fair trial as a result ofcertain instances of alleged prosecutorial misconduct during the prosecutor'scross-examination of him and during summation is largely unpreserved for appellatereview (see CPL 470.05 [2]; People v Banks, 74 AD3d 1214 [2010]; People v Gill, 54 AD3d965 [2008]), we nevertheless reach it in the exercise of our interest of justicejurisdiction (see CPL 470.15 [6]; People v McDuffie, 95 AD3d 1036, 1037 [2012]). Weconclude that the cumulative effect of the prosecutor's misconduct duringcross-examination of [*2]the defendant and onsummation deprived the defendant of a fair trial.
The prosecutor improperly functioned as an unsworn witness when shecross-examined the defendant regarding the closing time of a restaurant in Brooklyn(see People v Duncan, 13 NY2d 37 [1963]). The police officers who conductedthe traffic stop testified on their direct examinations that the traffic stop occurred at 9:35p.m. On his direct examination, in contrast, the defendant testified that the traffic stopoccurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of thevehicle were on their way to a restaurant in Brooklyn. During the prosecutor'scross-examination of the defendant, she improperly suggested facts not in evidence whenshe implied that the District Attorney's office had called the restaurant to ascertain itshours of operation, and asked the defendant whether he testified that the traffic stopoccurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was notopen at 9:35 p.m. (see People v Paperno, 54 NY2d 294, 300-301 [1981]). Duringsummation, the prosecutor again improperly implied, without having submitted anyevidence about the closing time of the restaurant, that the defendant had lied about whathe was doing at the time of the traffic stop (see People v Ashwal, 39 NY2d 105,109 [1976]).
Further, the prosecutor made improper remarks during summation which suggestedthat the defendant possessed the weapon with an intent to use it to harm someone, eventhough this was not an element of the crime for which the defendant was on trial (seePeople v Ashwal, 39 NY2d at 110). Similarly, the prosecutor's questioning of thedefendant about one of his tattoos was improper and led to the inflammatory andunsupported inference that the defendant had previously used the weapon to harmsomeone (see People vSpence, 92 AD3d 905, 906 [2012]). It was also improper for the prosecutor toargue during summation that the defendant had learned certain information during thepretrial hearing even though there was no evidence to support this assertion (seePeople v Ashwal, 39 NY2d at 109).
In addition, the prosecutor's statement during summation that the defendant did notmake any sudden movements during the traffic stop because he had already "played outthis exact scenario in his mind . . . every time he left his house with thatgun" was improper speculation, without any basis in the record, that the defendant hadcommitted multiple gun possession offenses prior to the subject incident which led to hisarrest (see People v Spence, 92 AD3d at 906).
In light of our determination, we need not reach the defendant's remainingcontention. Balkin, J.P., Austin, LaSalle and Barros, JJ., concur.