| People v Wright |
| 2015 NY Slip Op 08664 [133 AD3d 1097] |
| November 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPatrick Wright, Appellant. |
Susan Patnode, Rural Law Center of New York, Albany (Cynthia Feathers ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered April 21, 2014, upon a verdict convicting defendant of thecrimes of criminal sexual act in the third degree (three counts), rape in the third degree,endangering the welfare of a child and unlawfully dealing with a child in the firstdegree.
Following a jury trial, defendant was found guilty of various crimes (counts 2, 4, 6,8, 9 and 10) stemming from allegations that he provided a minor (hereinafter the victim)with alcohol and marihuana before having oral sex and sexual intercourse with her.Defendant was sentenced to an aggregate term of 11 years in prison, to be followed bythree years of postrelease supervision. Defendant now appeals.
The principal task before us on this appeal is to determine whether the numerousremarks made by the District Attorney (hereinafter DA) during summation were soprejudicial in their cumulative effect that they operated to deny defendant hisfundamental right to a fair trial. We conclude that they were and, although all but one ofdefendant's challenges to the DA's statements were not preserved by appropriateobjections, we exercise our interest of justice jurisdiction (see CPL 470.15 [6][a]) and reverse the judgment of conviction.
"Counsel is afforded wide latitude in advocating for his or her case duringsummation, but '[t]here are certain well-defined limits' that may not be exceeded" (People v Casanova, 119 AD3d976, 977 [2014], quoting People v Ashwal, 39 NY2d 105, 109 [1976]).Here, the DA's [*2]numerous inflammatory remarksduring summation surpassed those limits. Specifically, the DA began her summation bycommenting on defendant's failure to deny the allegations when being questioned by thepolice and, as such, improperly shifted the burden of proof (see People v Diotte, 63 AD3d1281, 1282-1283 [2009]). Specifically, in reference to the audio recording ofdefendant's interrogation, the DA stated: "You will hear what [defendant] tells you in this[audio recording]. You can assess his credibility. His many, many inconsistencies, hisoutright falsehoods and his unbelievability. You're not going to hear on the [recording]that he confessed. He's not going to say I raped [the victim], he's not going to say I hadsexual intercourse with [the victim], he's not going to say I had sexual contact with [thevictim]. He's not going to say any of that, but he never denies it until specifically asked.Think about that. You go into a police station knowing you're being investigated for arape, and you don't deny it until you're asked."[FN*]
Following those remarks, County Court sua sponte interrupted the DA and excusedthe jury. The court then warned the DA that she could not comment on defendant'sfailure to deny the allegations and, when the jury re-entered the courtroom, instructed thejury to ignore the DA's last statements. Shortly thereafter, County Court again sua sponteinterjected immediately after the DA inappropriately insinuated to the jury that, basedupon the timing, defendant's arrest was proof that he committed the alleged crimes.While not addressing a curative instruction to the jury, the court scolded the DA for thisinsinuation in front of the jury. The DA continued: "And then something very, veryinteresting. [Defendant] unknowingly makes an admission." Upon defense counsel'ssustained objection—on the basis of mischaracterization of the evidence sincethere was no such admission—a side-bar took place and County Court agreed todirect the jury to disregard the DA's last comment (compare People v Esposito,225 AD2d 928, 932 [1996], lv denied 88 NY2d 935 [1996]). Finally, theaforementioned errors were only compounded when the DA concluded her summationwith a paraphrase of defendant's alleged question to the victim on the night of theincident, "how do you feel now that you've been taken by a real man?" by stating:"Ladies and gentlemen, I want you to have the final word to this defendant. I want you totell him how it feels to have a guilty verdict from a real jury." Once again, County Courtsua sponte spoke to the jury advising that the DA's comments were an improper appeal toits sympathy, but that it was to decide the case based only upon the evidence and not adesire to exact revenge on defendant (see People v Bhupsingh, 297 AD2d 386,388 [2002]; People v Andre, 185 AD2d 276, 278 [1992]).
In our view, despite County Court's repeated instructions to the jury to disregardparts of the DA's summation, the judgment of conviction must be reversed because hersummation so "exceeded the bounds of fair advocacy" as to warrant a new trial(People v Calabria, 94 NY2d 519, 522-523 [2000]; see People v Riback, 13 NY3d416, 423 [2009]). Mindful that "not every improper comment made by theprosecuting attorney during the course of closing arguments warrants reversal of theunderlying conviction" (Peoplev Forbes, 111 AD3d 1154, 1160 [2013]), the severity and frequency of the DA'scomments here are such that no curative instruction could have alleviated the prejudicecreated (see People v Tarantola, [*3]178 AD2d768, 770 [1991], lv denied 79 NY2d 954 [1992]). Moreover, in this case, whereproof of defendant's guilt was not overwhelming but, rather, turned almost entirely on thejury's assessment of the victim, we cannot conclude that the DA's comments wereharmless (see e.g. People v Alexander, 94 NY2d 382, 385 [1999]). Accordingly,we find that defendant was deprived of a fair trial by several prejudicial remarks made bythe DA in summation and therefore order a new trial (see People v Riback, 13NY3d at 423; People v Calabria, 94 NY2d at 522-523; People v Ashwal,39 NY2d at 110-111; People v Casanova, 119 AD3d at 978-979; People vForbes, 111 AD3d at 1160).
In light of this decision, defendant's remaining contention need not beaddressed.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Courtof St. Lawrence County for a new trial on counts 2, 4, 6, 8, 9 and 10 of theindictment.
Footnote *:The audio recording wasadmitted into evidence and was available to the jury during its deliberations, but was notplayed for the jury in open court.