| People v Melendez |
| 2016 NY Slip Op 04328 [140 AD3d 421] |
| June 7, 2016 |
| Appellate Division, First Department |
[*1](June 7, 2016)
| The People of the State of New York,Respondent, v Matthew Melendez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., at suppressionhearing; Ronald A. Zweibel, J., at jury trial and sentencing), rendered December 3, 2013,convicting defendant of attempted murder in the first degree (two counts), attemptedaggravated assault upon a police officer or peace officer (two counts) and criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of20 years to life, unanimously reversed, on the law, and the matter remanded to SupremeCourt for a new trial.
The hearing court correctly determined that defendant knowingly and voluntarilywaived his Miranda rights before each of his statements (see People vWilliams, 62 NY2d 285, 289 [1984]). The record does not support defendant'sassertion that the police implied that the investigation pertained solely to the possiblecriminality of the police officers who shot defendant, rather than the criminality ofdefendant's attempt to shoot the officers. In any event, the Miranda warningsadministered the first day by the detective, and the second day by the prosecutor, clearlyinformed defendant that his statements could be used against him. None of theinterrogators made any remarks of the type condemned in People v Dunbar (24 NY3d304 [2014], cert denied 575 US &mdash, 135 S Ct 2052 [2015]), or thatotherwise undermined the effect of the warnings. Furthermore, as the suppression courtobserved, the content of defendant's statements demonstrated his awareness that theycould be used against him. In any event, given the generally exculpatory nature of thestatements when viewed in light of the trial issues, any error in receiving the statementswas harmless.
The testimony by an assistant district attorney on matters relating to grand juryprocedures and lawful use of force by the police presents a more troublesome issue.
The last witness called by the People on their direct case was one of the ADAsinvolved in the investigation of this case. She testified, over repeated objection, about thecircumstances under which police officers would be justified in using deadly force. Thistestimony was not merely a general outline of the defense of justification but was, inseveral instances, tailored to the facts of this case. For example, the ADA testified,among other things, that possession of a loaded firearm outside of one's home or place ofbusiness was a felony. She also testified that, in a situation where the police are pursuinga suspect whom they believe had committed a felony, and that suspect uses deadlyphysical force against them, or is armed with a deadly weapon, the police can properlyuse deadly physical force.
Here, defendant did not contest that he was armed with a loaded and operablefirearm. His defense, however, was that he did not fire directly at the police officerspursuing him but rather fired in the air in order to scare them off.
The ADA was further allowed to testify, again over repeated objection, about thecomposition and the function of a grand jury and how a witness either obtains or waivesimmunity before that body. As with her testimony regarding the justifiable use ofphysical force by police officers, this testimony was both of a general nature andspecifically related to the facts [*2]of this case. Forexample, she testified that a grand jury consists of 16 to 23 jurors who hear testimony to"determine if there is enough evidence for us to continue on a case or if there is not." Shethen proceeded to explain the grand jury subpoena process and how a witness who issubpoenaed to testify obtains immunity from prosecution for his grand jury testimony.The ADA was also permitted to testify, over objection, that if the grand jurors "feel thereare additional witnesses that they would like to hear from," the District Attorney cansubpoena those witnesses. She concluded by observing that none of the police witnessesin this case required a subpoena to testify in the grand jury, and none obtained immunityin exchange for their testimony.
Defense counsel moved for a mistrial and in response, the People argued that thistestimony was introduced in anticipation of a potential defense claim that the officerstestified falsely against defendant before the grand jury in order to protect themselvesfrom indictment for wrongfully shooting defendant. The prosecutor also argued that thistestimony was necessary to show that the officer's had no reason to fabricate theirtestimony. The defense, however, never made either claim. The motion for a mistrial wasdenied.
This testimony was improper for several reasons.
Comments regarding grand jury composition and proceedings have repeatedly beenheld to be improper when made by a court, and the same rationale applies when made bya prosecutor (see e.g. People v Fortt, 35 NY2d 921, 922 [1974], revg forreasons state by dissent 42 AD2d 859 [2d Dept 1973]; People v Barnes, 93AD2d 864, 865 [2d Dept 1983], lv denied 60 NY2d 589 [1983]; People vWilliams, 57 AD2d 876 [2d Dept 1977]). Such references are "completelyunnecessary and possibly misleading" (People v Fortt, 35 NY2d at 922).
Here, the ADA's testimony that the grand jury that indicted defendant had heardtestimony, had not asked to subpoena additional witnesses, and had voted to "goforward" fall within this prohibition. It carried the clear implication that the grand juryfound that the police officer witnesses had testified credibly and had heard all theevidence necessary to indicate defendant's guilt.
Moreover, this testimony "was totally irrelevant to any legitimate issue presented atthe trial," and as such was improper (People v Ashwal, 39 NY2d 105, 110[1976]). As noted, it was introduced in anticipation of a defense argument that theofficers had testified falsely in the grand jury to justify their actions in shootingdefendant. This argument was never raised by the defense. In fact, the question oftestifying without immunity in the grand jury was raised by the prosecutor during hisdirect examination of a police officer and was only commented on by defense after it wasraised by the prosecutor.
These errors were compounded by the ADA's testimony regarding the use of deadlyphysical force by the police. By permitting the witness to instruct the jury on the law ofjustification during the People's case, and apply the law to the facts of this case, "thecourt improperly surrendered its nondelegable judicial responsibility" (People v Brown, 104 AD3d864, 865 [2d Dept 2013]; see also People v Stiggins, 1 NY3d 529, 530 [2003];People v Bayes, 78 NY2d 546, 551 [1991]). "The court's delegation of thiscritical judicial function to the [prosecutor-witness] significantly impaired the integrity ofthe proceedings and deprived the defendant of a fair trial" (People v Brown, 104AD3d at 865).
With respect to the prosecutor's summation, many of the challenged remarksgenerally constituted permissible advocacy. A prosecutor, like any other advocate, isentitled to broad leeway in summation (People v Galloway, 54 NY2d 396, 399[1981]; People v Nai Hing Liang, 208 AD2d 401, 401 [1st Dept 1994]).However, there are certain well-defined limits to such advocacy. "Above all[,] he shouldnot seek to lead the jury away from the issues by drawing irrelevant and inflammatoryconclusions which have a decided tendency to prejudice the jury against the defendant"(People v Ashwal, 39 NY2d at 110). The prosecutor must "stay within the fourcorners of the evidence," "may not refer to matters not in evidence," should not "callupon the jury to draw conclusions which are not fairly inferrable from the evidence," ormake arguments that "have no bearing on any legitimate issue in the case" (id. at109-110 [internal quotation marks omitted]).
Here, on two separate occasions during his summation, the prosecutor did exactlythat.
At one point, he rolled up a piece of paper and placed it in front of a gun. He usedthis [*3]prop, over repeated objection, to demonstrate apolice officer's testimony regarding muzzle flashes. The police witness, however, did notmake such a demonstration during his testimony, and his references to a muzzle flashwere limited.
Subsequently, the prosecutor used a laser pointer to demonstrate how the shots firedby defendant would have gone wide of their mark. He also used this demonstration toargue that defendant's bullets would have shattered and thus explain the absence ofballistics evidence from defendant's gun. No expert ballistics testimony was presentedduring the trial.
These comments were based upon facts not in evidence, something defense counselspeficially noted in at least two objections that were overruled. Moreover, they tended tolead the jury away from the issues before them in this case. As a result, they wereimproper (People v Fisher,18 NY3d 964, 966 [2012]; People v Collins, 12 AD3d 33, 39-40 [1st Dept 2004]).Additionally, by discussing muzzle flashes and the potential trajectory of the defendant'sbullets, the prosecutor improperly testified, not only as a witness, but as an expert witness(People v Fisher, 18 NY3d at 966).
The cumulative effect of these multiple improprieties during the People's direct caseand summation caused defendant substantial prejudice and denied him a fair trial(People v Calabria, 94 NY2d 519, 523 [2000]).
Accordingly, we reverse and remand for a new trial (People v Riback, 13 NY3d416, 423 [2009]). Concur—Sweeny, J.P., Acosta, Manzanet-Daniels, Gischeand Gesmer, JJ.