| People v Ramsey |
| 2015 NY Slip Op 08874 [134 AD3d 1170] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam A. Ramsey, Appellant. |
Frank A. Sarat, Homer, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr.,J.), rendered March 7, 2014, upon a verdict convicting defendant of the crime of assaultin the second degree.
Defendant was charged by indictment with assault in the second degree stemmingfrom an incident in July 2012 where he allegedly ran over his girlfriend, Deborah Meyer,with a pickup truck. During a jury trial, defendant successfully objected to a witnesstestifying that defendant directed obscenities at Meyer minutes following that accidentand such testimony was stricken from the record. During summation, the People referredto this stricken testimony without objection from defendant. Following the trial, the juryfound defendant guilty as charged and he was sentenced to seven years in prison, to befollowed by five years of postrelease supervision. Defendant now appeals and, findingthat defendant was deprived of the effective assistance of counsel, we reverse.
"To prevail on his ineffective assistance of counsel claim on the basis of [a] singlefailure to object, defendant must show both that the objection omitted by trial counsel isa winning argument . . . and that the objection was one that no reasonabledefense lawyer, in the context of the trial, could have thought to be 'not worthraising' " (People vBrown, 17 NY3d 742, 743-744 [2011], quoting People v Turner, 5 NY3d476, 481 [2005]). In our view, defendant has met his burden of demonstrating a lackof strategic or other legitimate reason for his defense [*2]lawyer's failure to object (see People v Rivera, 71NY2d 705, 709 [1988]) and, accordingly, a new trial is warranted.
Here, during direct examination by the People, the witness testified that he hearddefendant yell, "I hope you f . . . ing die, bitch." Finding that this testimonywent to defendant's state of mind, County Court overruled counsel's objection andpermitted the statement into evidence. The witness then testified that he assumeddefendant was directing such comment toward Meyer. Upon defendant's furtherobjection, County Court held that the witness could not speculate as to whom defendanthad directed his comment, and the witness's testimony in that regard was stricken fromthe record. Despite this evidentiary ruling, during summation, the People twice madeimproper references to the stricken testimony and twice those references went withoutobjection from defense counsel or curative instructions from the court.[FN*] Specifically, at one pointduring closing argument the prosecutor stated, "If this was some sort of an accident, thenwhy would the defendant scream at [Meyer], I hope you f . . . ing die, bitch?Is that consistent with an accident or is that consistent with an intent to injure? If youaccidentally just ran over your significant other, is that what you would say tothem?"
In light of County Court's prior ruling, an objection by defense counsel to theseimproper comments should have been granted (see People v Ashwal, 39 NY2d105, 109-110 [1976]). Moreover, inasmuch as the evidence of defendant's guilt was notoverwhelming—especially with respect to the element of intent, which "may beinferred from the surrounding circumstances, including the defendant's conduct andremarks" (People vPine, 126 AD3d 1112, 1114 [2015] [internal quotation marks omitted; emphasisadded]; see People vJohnson, 107 AD3d 1161, 1163 [2013], lv denied 21 NY3d 1075[2013])—we find that no reasonable defense lawyer could have thought that suchan objection would not have been worth making. Given the detrimental effect thatdiscussion of the stricken evidence had on defendant, we determine that the prosecutor'scomments were so substantially prejudicial that they deprived defendant of a fair trial. Assuch, despite his otherwise appropriate legal representation, defense counsel's failure toobject to the People's improper summation constituted the ineffective assistance ofcounsel (see People v Turner, 5 NY3d at 480).
In light of our decision, we need not consider defendant's remaining contention.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Chemung County for a newtrial.
Footnote *:Under thesecircumstances, we find that a sua sponte curative instruction by County Court waswarranted (see People vColvin, 37 AD3d 856, 858 [2007], lv denied 8 NY3d 944 [2007]).