| People v Casiano |
| 2017 NY Slip Op 02053 [148 AD3d 1044] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Hector Casiano, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai and Ronald Zapata of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, andJean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.),rendered July 16, 2013, convicting him of assault in the second degree, assault in the thirddegree, and criminal mischief in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, count six of the indictment charging criminal mischief in the third degree is dismissed,and the matter is remitted to the Supreme Court, Kings County, for a new trial on the charges ofassault in the second degree under count one of the indictment and assault in the third degreeunder count four of the indictment.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally insufficient to establish thedefendant's guilt of criminal mischief in the third degree beyond a reasonable doubt (see People v Powell, 101 AD3d756, 757 [2012]; People vCurry, 101 AD3d 743, 744 [2012]; People v Deolall, 7 AD3d 635, 635 [2004]). The evidence wasinsufficient to establish, beyond a reasonable doubt, that the damage to the subject propertyexceeded the sum of $250 (see Penal Law § 145.05 [2]; People vCurry, 101 AD3d at 744). We therefore vacate that conviction and dismiss count six of theindictment.
The defendant correctly asserts that the cumulative effect of the prosecutor's impropercomments during summation requires a new trial. "[I]n summing up to the jury, [the prosecutor]must stay within 'the four corners of the evidence' and avoid irrelevant and inflammatorycomments which have a tendency to prejudice the jury against the accused" (People vBartolomeo, 126 AD2d 375, 390 [1987], quoting People v Ashwal, 39 NY2d 105,109 [1976]). Here, during summation, the prosecutor repeatedly engaged in improper conduct.For instance, the prosecutor vouched for the credibility of the People's witnesses with regard tosignificant aspects of the People's case by asserting, inter alia, that "the witnesses who camebefore you provided truthful testimony that makes sense," that they gave the "kind of truthful andcredible testimony that you can rely on," and that one witness had "no reason . . . tobe anything but truthful with the 911 operator" (see People v Redd, 141 AD3d 546, [*2]548 [2016]; People v Spence, 92 AD3d 905, 905-906 [2012]; People v Brown, 26 AD3d 392,393 [2006]). In describing a complainant, the prosecutor asserted that he was "exactly what youhoped to see from someone who had troubles with the law in their youth," but had "changed [his]life" and now worked at an organization that helps "low-income people [obtain] health care,"which was a clear attempt to appeal to the sympathy of the jury (see People v Smith, 288AD2d 496, 497 [2001]; see also Peoplev Anderson, 83 AD3d 854, 856 [2011]). To support the credibility of that samecomplainant, the prosecutor injected the integrity of the District Attorney's office into the trial todownplay the severity of a past criminal charge he faced (see People v Carter, 40 NY2d933, 934 [1976]; People v Morgan,111 AD3d 1254, 1256 [2013]). Further, the prosecutor denigrated the defense andundermined the defendant's right to confront witnesses by implying that the complainants werevictims of an overly long cross-examination and that one was a "saint" for answering so manyquestions (see generally People vBrisco, 145 AD3d 1028 [2016]; People v Baum, 54 AD3d 605, 606 [2008]). Moreover, theprosecutor improperly used the defendant's right to pretrial silence against him by arguing that hecould not be a victim as he did not call 911 (see People v De George, 73 NY2d 614, 618[1989]). The cumulative effect of these improper comments deprived the defendant of a fair trial(see People v Calabria, 94 NY2d 519, 522 [2000]; People v Crimmins, 36 NY2d230, 237-238 [1975]; People vSpann, 82 AD3d 1013, 1015 [2011]). To the extent that the defendant's challenges tosome of the above remarks were not preserved for appellate review, we nevertheless reach themin the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]).
As a new trial must be ordered, we further note that the Supreme Court erred in admitting therecording of the second 911 call of a nontestifying witness under the present sense impressionand excited utterance exceptions to the hearsay rule, and by unduly restricting the defendant'scross-examination of a complainant. The 911 call did not qualify as a present sense impressionbecause the element of contemporaneity was not satisfied (see People v Vasquez, 88NY2d 561, 575 [1996]; People vParchment, 92 AD3d 699 [2012]), and the People failed to demonstrate that the delaybetween the conclusion of the event and the beginning of the call was not sufficient to destroy theindicia of reliability upon which the present sense impression exception rests (see People vParchment, 92 AD3d at 699; Peoplev Matyszewski, 47 AD3d 646 [2008]). The call also did not qualify as an excitedutterance because the tenor of the call did not reflect that the caller was so excited or stressed bythe incident that her ability to reflect thereon was stilled (see People v Cantave, 21 NY3d 374, 382 [2013]). With respect tothe defendant's cross-examination of the complainants, the defense had a good faith basis toestablish a possible motive to fabricate testimony, explore inconsistencies between theirtestimony, and to test the truthfulness of their narratives (see People v Bartello, 243AD2d 483, 483 [1997]; People v Rufrano, 220 AD2d 701, 702 [1995]; People vElder, 207 AD2d 498, 499 [1994]), and the defense is permitted to exceed the scope of adirect examination in order to prove a relevant proposition such as the justification defense (see People v Sanders, 2 AD3d1420, 1420-1421 [2003]).
Furthermore, because we are reversing and ordering a new trial, we note that the SupremeCourt, in fashioning its Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]), failed to appropriately balance the probative value of the defendant's prior crimes on theissue of his credibility and possible prejudice to the defendant if he were questioned about suchcrimes on cross-examination in the event he elected to take the stand (see People v Kucmierowski, 103 AD3d755, 755-756 [2013]).
In light of our determination, we need not reach the defendant's remaining contention.Rivera, J.P., Leventhal, Hall and Duffy, JJ., concur.