| People v Brisco |
| 2016 NY Slip Op 08878 [145 AD3d 1028] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kohrelle Brisco, Appellant. |
Lynn W.L. Fahey, New York, NY (Denise A. Corsí of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Samantha S. Alessi, Joseph N. Ferdenzi, and Danielle O'Boyle ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J., at the first trial; Zayas, J., at the second trial and at sentence), renderedJanuary 9, 2014, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree, upon a jury verdict at the secondtrial, and resisting arrest, upon a jury verdict at the first trial, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Queens County, for a new trial.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of criminal possession of a weapon in the second degree (see PenalLaw § 265.03 [3]) and criminal possession of a weapon in the third degree(see Penal Law § 265.02 [1]) is unpreserved for appellate review(see CPL 470.05 [2];People v Hawkins, 11 NY3d 484, 493 [2008]; People v McClymont, 126AD3d 812, 813 [2015]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish that the defendant possessed a firearmoutside his home and place of business (see People v McClymont, 126 AD3d at813) and that he had been previously convicted of a felony (see People v Williams, 94AD3d 779, 780 [2012]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdicts of guilt on the counts ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree were not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, the cumulative effect of the prosecutor's improper comments duringsummation at the second trial requires a new trial. "[I]n summing up to the jury, [theprosecutor] must stay within 'the four corners of the evidence' and avoid irrelevant andinflammatory comments [*2]which have a tendency toprejudice the jury against the accused" (People v Bartolomeo, 126 AD2d 375,390 [1987], quoting People v Ashwal, 39 NY2d 105, 109 [1976]).
Here, during that summation, the prosecutor directly attacked defense counsel's roleand his integrity. Specifically, the prosecutor raised a hypothetical that bore no relation tothe evidence in the case and then suggested what defense counsel would have arguedwith respect to that irrelevant hypothetical, in effect, implying that the defense argumentswere the product of expediency. This tactic invited the jury to reject defense counsel'sargument not on the merits, but merely because it was raised by defense counsel. Westrongly disapprove of this attack on the legitimacy of defense counsel's role (see People v Baum, 54 AD3d605, 606 [2008]; People v Rivera, 116 AD2d 371, 374 [1986]). Theprosecutor also improperly referenced facts not in evidence in order to call forspeculation by the jury (see People v Brown, 256 AD2d 414, 416 [1998]) andmisstated critical testimony provided by a defense witness, alleging that certain factswere "undisputed" when in fact they were disputed (see People v Spann, 82 AD3d 1013, 1015 [2011];People v Brown, 256 AD2d at 416).
The prosecutor improperly appealed to the jury's sympathy and generalized fear ofcrime by asserting that the defendant possessed a loaded gun while families and childrenfrom the "20 residential buildings" were "everywhere" having "cookouts" and celebratingthe Fourth of July, and that because the various police officers "did their jobs,""fortunately, nothing happened." These comments implied to the jury that the defendantintended to commit crimes with which he was not charged (see People vHendrickson, 73 AD2d 676, 676 [1979]). Furthermore, immediately upon praisingthe police officers who "did their jobs," the prosecutor turned to the jury and advised that"[n]ow it's your turn to uphold your oaths as jurors and do your jobs" by finding thedefendant guilty. This type of "safe streets" argument is inflammatory and has repeatedlybeen disapproved by the courts (see People v Jackson, 199 AD2d 535, 535[1993]; People v Payne, 187 AD2d 245, 250 [1993]).
The prosecutor also compared the defendant's in-court demeanor and appearance tohow he appeared on the night of his arrest in order to argue that the jury should not befooled into considering him a "gentleman" (see People v Nunez, 74 AD2d 805,806 [1980]). The prosecutor went so far as to point to the defendant's precinct photo andstated that his appearance there represented his "true colors."
We find that the cumulative effect of these improper comments deprived thedefendant of a fair trial (see People v Calabria, 94 NY2d 519, 522 [2000];People v Crimmins, 36 NY2d 230, 237-238 [1975]; People v Spann, 82AD3d at 1016).
The defendant's remaining contention is without merit. Balkin, J.P., Dickerson,Cohen and Brathwaite Nelson, JJ., concur.