| People v Porter |
| 2016 NY Slip Op 00852 [136 AD3d 1344] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEric Porter, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered January 31, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third 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, that part of the omnibusmotion seeking to suppress defendant's statements is granted, and a new trial is grantedon counts one and two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and criminal possession of a weapon in the third degree(Penal Law § 265.02 [1]). Defendant contends that he was unlawfullydetained by the police during a traffic stop of the vehicle in which he was a passenger,and that Supreme Court erred in refusing to suppress his statements to the police as thefruit of that unlawful detention. We agree.
The vehicle in which defendant was a passenger was stopped by the police forhaving a suspended registration. After the driver of the vehicle was arrested, but beforethe police could conduct an inventory search of the vehicle in preparation forimpounding the vehicle, defendant asked whether he could leave the scene. The policetold defendant that he must remain present with them until the inventory search wascomplete. After the police began the inventory search, defendant twice stated that therewas a rifle in the vehicle. One of the officers discovered the rifle wrapped tightly in apink blanket on the floor of the front passenger seat, and he later testified at thesuppression hearing that he had noticed the blanket "directly against [defendant's] leg"when he first approached the vehicle. At trial, the only evidence presented by the Peoplelinking defendant to the rifle consisted of defendant's two statements to the police thatthere was a rifle in the vehicle.
Although we conclude that the initial traffic stop was valid based on the vehicle'ssuspended registration, we agree with defendant that the justification for that stop endedonce the driver had been arrested for that offense (see People v Banks, 85 NY2d558, 562 [1995], cert denied 516 US 868 [1995]; cf. People v Rainey, 49 AD3d1337, 1339 [2008], lv denied 10 NY3d 963 [2008]). Contrary to the People'scontention, prolonging the detention of defendant was not justified by concern for officersafety. At the suppression hearing, the officers failed to identify any specific basis for abelief that defendant posed a danger. Rather, they testified that defendant wascooperative during the initial traffic stop, and the officers did not testify that theybelieved that defendant, in departing, would have threatened their safety (seegenerally People v Torres, 74 NY2d 224, 230-231 [1989]). Indeed, the People didnot present any evidence of "articulable facts" from the encounter to establish reasonablesuspicion that defendant posed any danger to the officers (People v [*2]Harrison, 57 NY2d 470, 476 [1982]; see generally People v May, 52AD3d 147, 151 [2008]). We therefore agree with defendant that the court erred indenying that part of his omnibus motion seeking to suppress his statements.
We further conclude that the court's error is not harmless inasmuch as there is a"reasonable possibility that the error might have contributed to defendant's conviction"(People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Huntsman, 96AD3d 1390, 1392 [2012]; see generally People v Douglas, 4 NY3d 777, 779 [2005]).Indeed, as noted above, defendant's statements to the police were the only evidence attrial establishing the element of knowledge for the possessory crimes against him (see People v Brown, 21 NY3d739, 751 [2013]). We therefore reverse the judgment, grant that part of defendant'somnibus motion seeking to suppress his statements, and grant a new trial on counts oneand two of the indictment.
We further agree with defendant that various instances of prosecutorial misconductdeprived him of his right to a fair trial and that reversal is required on that ground aswell. Although defendant failed to preserve his challenges for our review, we exerciseour power to review them as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]; People vScheidelman, 125 AD3d 1426, 1427 [2015]). During cross-examination, theprosecutor questioned the driver of the vehicle regarding an out-of-court conversationbetween them, asking her whether she came to his office and admitted that the defendant"[tried] to get [her] to come and take the blame for the gun." After the witness denied forthe second time that such a conversation had taken place, the prosecutor rhetoricallyasked, "[b]ut you were the one who was convicted of Scheme to Defraud, correct?" Bychallenging the witness with respect to the out-of-court conversation, the prosecutor bothimproperly interjected his personal opinion as to the truthfulness of the testimony andsuggested to the jury that his own, unsworn version of events should be credited (seePeople v Bailey, 58 NY2d 272, 277 [1983]; People v Ramashwar, 299 AD2d496, 497 [2002]).
In addition, instances of prosecutorial misconduct on summation deprived defendantof his right to a fair trial. The prosecutor improperly denigrated defendant's case byreferring to certain contentions as "[a]ll this nonsense," made repeated non sequitursdistinguishing the case from the John F. Kennedy assassination, and asserted that thedefense was "twisting things" and employing "tricks" (see People v Morgan, 111AD3d 1254, 1255 [2013]). The prosecutor compounded those statements byconsistently commenting on witness credibility, calling the defense witnesses "a cast ofcharacters," "people com[ing] out of the woodwork," and specifically referring to onewitness as "a piece of work." The prosecutor accused the defense witnesses of lying, andalso argued that one could not believe a certain witness who had a lawyer advising herwhile testifying, stating that he "couldn't tell if those were her words or her lawyer'swords when she was talking." Not only did the prosecutor state his belief that witnesseshad lied, he also alleged that the witnesses must have met secretly in order to plan andcollude regarding their testimony. That was patently improper (see Bailey, 58NY2d at 277).
In addition to criticizing defendant's case and witnesses, the prosecutor also engagedin misconduct on summation by suggesting that an acquittal would require the jury tofind a conspiracy by law enforcement (see People v Morgan, 75 AD3d 1050, 1053-1054 [2010],lv denied 15 NY3d 894 [2010]), by improperly suggesting that defendant bore aburden of proof (see People vGriffin, 125 AD3d 1509, 1510 [2015]), and by misstating a key point of lawregarding detention incident to a traffic stop (see generally People v Riback, 13 NY3d 416, 423 [2009]).In light of the nature and number of instances of prosecutorial misconduct, we concludethat defendant was deprived of his right to a fair trial.
In view of our determination, we do not address defendant's remaining contentionthat he was denied effective assistance of counsel. Present—Smith, J.P., Peradotto,Lindley, Whalen and DeJoseph, JJ.