| People v Holiday |
| 2016 NY Slip Op 05816 [142 AD3d 625] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alshawn Holiday, Appellant. |
Lynn W. L. Fahey, New York, NY (Paul Skip Laisure of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, MorganJ. Dennehy, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered August 10, 2011, convicting him of murder in the second degreeand criminal possession of a weapon in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest ofjustice, and a new trial is ordered.
The defendant was convicted after a jury trial of charges related to the shooting deathof the victim in April 2010. On appeal, he raises several meritorious claims of error,some of which are preserved for appellate review and some of which are not. None of theerrors is by itself sufficient to require reversal. Nonetheless, we conclude that thecumulative effect of certain of these errors cannot be deemed harmless in this case, andthus, we must reverse the judgment and order a new trial.
On the second day of trial, defense counsel advised the Supreme Court that "quite afew members of the deceased's family are present in the court, they are all wearingT-shirts with his photograph on it, displayed in a fairly prominent position on the front oftheir T-shirts." Defense counsel requested that the court instruct the spectators to removethe T-shirts or turn them inside out. After asking the members of the audience to stand upfor a moment so as to view the T-shirts, the court stated that there was no basis to limittheir right to wear items or make a statement since they had a First Amendment right todo so. The court also stated: "It should be noted that the Court, in viewing the audience,saw nothing outstanding other than T-shirts with some pictures and some words. One ofthe picture[s] may be of the [victim], I can't tell from this distance. But, at any rate, that'smy ruling for the record, over counsel's objection."
The Court of Appeals has recently held that "spectator displays depicting a deceasedvictim should be prohibited in the courtroom during trial" because such "depictions maybe viewed by the jury as an appeal to sympathy for the deceased victim and the spectatorswearing the display, and perhaps as a request to hold the defendant responsible for theirloss" (People v Nelson, 27NY3d 361, 371 [2016]). In this case, there was no evidence in the record that thespectators attempted to draw [*2]attention to themselvesor engage in any other egregious behavior, and no evidence that the words on the T-shirtswere prominent. When defense counsel raised the issue early in the trial, the SupremeCourt refused to prohibit the conduct. However, that conduct did not deprive thedefendant of a fair trial and, therefore, is subject to harmless error analysis. Since theevidence of the defendant's guilt was overwhelming, and there was no significantprobability that the court's failure to prohibit the conduct contributed to the verdict, thiserror was harmless (see id. at 372-373; People v Crimmins, 36 NY2d 230[1975]).
The prosecutor improperly appealed to the jury's sympathy by eliciting testimonyfrom the victim's mother that the victim's wife was expecting a child and expressingsympathy for her loss by stating on the record, "Thank you ma-am. I'm sorry for yourloss" (see People v Miller, 6 NY2d 152, 157 [1959]). A defendant is "entitled to atrial upon evidence proving or tending to prove the crime with which he was charged'. . . uninfluenced by irrelevant facts and circumstances which tend toprejudice or mislead the jury' " (People v Tassiello, 300 NY 425,430-431 [1950], quoting People v Posner, 273 NY 184, 190 [1937])."[T]estimony about victims' personal backgrounds that is immaterial to any issue at trialshould be excluded" (People v Harris, 98 NY2d 452, 490-491 [2002]). Here, thetestimony in question was calculated to appeal to the passion and sympathy of the juryand unduly prejudiced the defendant (see People v Miller, 6 NY2d at 157;People v Caruso, 246 NY 437, 443 [1927]).
That error was compounded when, during summation, the prosecutor improperlyappealed to the jury's sympathy by commenting that when the victim left his house on thenight in question, he had no idea that he was "never going to see his family again" and"never going to be able to see his girlfriend again," and stating that it was a "tragedy" thathis "24-year-old life was taken away by this man here (indicating), [the defendant]"(see People v Walters, 251 AD2d 433, 434 [1998]). The prosecutor committedmisconduct of a different sort during summation when, while playing a surveillancevideo introduced into evidence at trial, she identified certain barely visible figures on thescreen as the victim and the defendant. Throughout the course of these comments, theSupreme Court repeatedly instructed the jury that it alone should assess the video and notrely on the prosecutor's comments, but the prosecutor persisted in her characterization ofthe figures on the screen.
Although the claims of prosecutorial misconduct regarding the testimony of thevictim's mother and improper summation comments are unpreserved for appellatereview, we nonetheless reach them in the exercise of our interest of justice jurisdiction(see People v Jackson, 139AD3d 875 [2016]; People v Rodriguez, 75 AD2d 829 [1980]). While eachof these errors, standing alone, may not warrant reversal, there is a significant probabilitythat their combined effect contributed to the defendant's conviction. Accordingly, thejudgment must be reversed, and a new trial ordered.
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Balkin, J.P., Miller, Hinds-Radix and BrathwaiteNelson, JJ., concur.