| People v Rupnarine |
| 2016 NY Slip Op 04257 [140 AD3d 1204] |
| June 2, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTejpaul Rupnarine, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedNovember 25, 2013 in Schenectady County, upon a verdict convicting defendant of thecrimes of robbery in the second degree, unlawful imprisonment in the first degree,menacing in the second degree and criminal mischief in the fourth degree.
Defendant was indicted and charged with multiple crimes stemming from an incidentin January 2013, where defendant lured his ex-girlfriend to his house where he had beenliving, damaged and deprived her of her cell phone, restrained her by physical force,punched her and threatened her with a knife. Following a jury trial, defendant wasconvicted of robbery in the second degree, unlawful imprisonment in the first degree,menacing in the second degree and criminal mischief in the fourth degree. Defendantwas subsequently sentenced to an aggregate prison term of seven years followed by fiveyears of postrelease supervision. Defendant's primary contention on appeal is that theprosecutor's comments during summation deprived him of a fair trial. While defendantdid not preserve this argument for review due to his failure to raise an objection duringthe prosecutor's summation (see CPL 470.05 [2]), we exercise our interest ofjustice jurisdiction and reverse (see People v Skinner, 298 AD2d 625, 626[2002]).
Counsel is afforded wide latitude during summations, but when a prosecutor'sremarks are so egregious such that they deprive a defendant of a fair trial, reversal iswarranted (see People vForbes, 111 AD3d 1154, 1160 [2013]). During his summation, the prosecutor[*2]remarked that defendant failed to provide an"innocent explanation" for his actions or that it was necessary for him to do so. Indeed, arecurring and substantial theme in the prosecutor's summation was defendant's inabilityto provide an innocent explanation for his conduct following the incident giving rise tothe charges against him or for the presence of incriminating evidence at the crime scene.We agree with defendant that these comments improperly shifted the burden of prooffrom the People to defendant (see People v Mitchell, 129 AD3d 1319, 1321 [2015], lvdenied 26 NY3d 1041 [2015]; People v Hendrie, 24 AD3d 871, 873 [2005], lvdenied 6 NY3d 776 [2006]; People v Jamal, 307 AD2d 267, 268 [2003]). Wealso cannot say that any error as a result of these statements was harmless. Theprosecutor's "innocent explanation" comments were neither isolated nor fleeting but wererepeated pervasively throughout the summation.
Furthermore, while Supreme Court instructed the jury that the People maintained theburden of establishing defendant's guilt beyond a reasonable doubt (see People v Morrison, 127AD3d 1341, 1343 [2015], lv denied 26 NY3d 932 [2015]), such instructiondid not ameliorate the prejudice to defendant (see People v Calabria, 94 NY2d519, 523 [2000]). After Supreme Court gave this instruction and during the jury'sdeliberation, the jury sent a note requesting that Supreme Court read back theprosecutor's summation, but only that portion of the summation "that refer[red] toinnocent explanations and lack of innocent explanations." Even though Supreme Courtdeclined to reread the summation and reminded the jury that summations did notconstitute evidence, given the jury's focus on the "innocent explanation" remarks, underthe circumstances of this case, the lack of a further instruction reminding the jury of thePeople's burden of proof in response to the jury's request only compounded the error ofthe prosecutor's comments. Based on the foregoing, we conclude that defendant wasprejudiced by the comments in the prosecutor's summation and a new trial is required (see People v Singh, 128 AD3d860, 863-864 [2015]; People v Forbes, 111 AD3d at 1159; cf. People v Hopkins, 56 AD3d820, 821 [2008]).
McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, and matter remitted to theSupreme Court for a new trial.