| People v Jones |
| 2015 NY Slip Op 09773 [134 AD3d 1588] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael D. Jones, Appellant. |
Catherine H. Josh, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Robert B. Wiggins,A.J.), rendered September 30, 2009. The judgment convicted defendant, upon a juryverdict, of attempted rape in the first degree, attempted criminal sexual act in the firstdegree and assault in the second 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 ofattempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]),attempted criminal sexual act in the first degree (§§ 110.00, 130.50[1]) and assault in the second degree (§ 120.05 [6]), defendant contendsthat reversal is required based on pervasive prosecutorial misconduct on summation. Weagree.
We note at the outset that, although defendant failed to preserve his contention forour review with respect to all but one alleged instance of prosecutorial misconduct(see CPL 470.05 [2]), we exercise our power to review defendant's contentionwith respect to the remaining instances as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]; People v Griffin, 125 AD3d 1509, 1510 [2015]). Onsummation, the prosecutor repeatedly invoked a "safe streets" argument (see People vTolliver, 267 AD2d 1007, 1007 [1999], lv denied 94 NY2d 908 [2000]),even after Supreme Court sustained defense counsel's objection to the prosecutor's use ofthat argument; denigrated the defense by calling defense counsel's arguments "garbage,""smoke and mirrors," and "nonsense" intended to distract the juror's focus from the"atrocious acts" that defendant committed against the victim (see People v Morgan, 111AD3d 1254, 1255 [2013]; People v Spann, 82 AD3d 1013, 1015 [2011]; People v Brown, 26 AD3d392, 393 [2006]); improperly characterized the defense as being based on a "bigconspiracy" against defendant by the prosecutor and the People's witnesses (seePeople v Cowan, 111 AD2d 343, 345 [1985], lv denied 65 NY2d 978[1985]); and denigrated the fact that defendant had elected to invoke his constitutionalright to a trial (see People v Rivera, 116 AD2d 371, 373 [1986]). Perhaps mostegregiously, given that "the potential danger posed to defendant when DNA evidence ispresented as dispositive of guilt is by now obvious," the prosecutor engaged inmisconduct when she mischaracterized and overstated the probative value of the DNAevidence in this case (People vWright, 25 NY3d 769, 783 [2015]).
We recognize, of course, that "[r]eversal is an ill-suited remedy for prosecutorialmisconduct" (People v Galloway, 54 NY2d 396, 401 [1981]). It is neverthelessmandated when the conduct of the prosecutor "has caused such substantial prejudice tothe defendant 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]; see Griffin, 125 AD3d at 1511). In view of the substantial prejudicecaused by [*2]the prosecutor's misconduct in this case,including the fact that the evidence of guilt is less than overwhelming (seeGriffin, 125 AD3d at 1512), we agree with defendant that reversal is required.
In light of our determination, we do not address defendant's remaining contentions.Present—Scudder, P.J., Smith, Centra, Peradotto and Carni, JJ.