| People v Ramirez |
| 2017 NY Slip Op 03780 [150 AD3d 898] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Ramirez, Appellant. |
Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Jeanette Lifschitz, Aurora Alvarez-Calderon, and Danielle O'Boyle of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz,J.), rendered June 18, 2014, convicting him of gang assault in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Chowdhury, 22 AD3d596, 597 [2005]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]; cf. People v Chavez, 139AD3d 1082 [2016]).
However, a new trial is required due to the prosecutor's improper comments duringsummation. While the defendant's claim in this regard is partially unpreserved for appellatereview, we nevertheless review it in the exercise of our interest of justice jurisdiction (seeCPL 470.15 [6] [a]; People vSpann, 82 AD3d 1013, 1015 [2011]).
"[S]ummation is not an unbridled debate in which the restraints imposed at trial are castaside so that counsel may employ all the rhetorical devices at his [or her] command" (Peoplev Ashwal, 39 NY2d 105, 109 [1976]). Rather, "[t]here are certain well-defined limits,"including, among others, that the prosecutor "may not refer to matters not in evidence"(id. at 109-110; see People vSingh, 128 AD3d 860, 863 [2015]).
Here, the prosecutor acted as an unsworn witness when he addressed the impeachment of oneof the People's main witnesses, a sister of the complainant (hereinafter the [*2]sister). During cross-examination, the sister was impeached byinconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutorargued to the jury that defense counsel had "selected certain portions out of context in the grandjury minutes," and that the jury "didn't get the entire grand jury minutes" (see People vWhalen, 59 NY2d 273, 281 [1983]; People v Singh, 128 AD3d at 863; People vSmith, 288 AD2d 496 [2001]; People v Brown, 256 AD2d 414, 416 [1998]). Thesecomments were particularly prejudicial. The sister's testimony, and thus her credibility, werecrucial to the People's proof against the defendant, which was less than overwhelming. Theprosecutor's comments suggested, without any evidentiary support, that the jury should disregardthe sister's grand jury testimony, in which she failed to name the defendant as a participant in thesubject assault, because there was more to the testimony than they knew.
In addition, in reference to the father of the complainant and the sister, who was presentduring the subject assault but was not called to testify, resulting in a missing witness charge, theprosecutor improperly suggested, and invited the jury to speculate, that the father would havegiven testimony supportive of his children had he been called to testify (see People vSingh, 128 AD3d at 863; People v Smith, 288 AD2d at 497).
Particularly in light of the highly prejudicial nature of the comments involving the sister'sgrand jury testimony, these improper comments deprived the defendant of his right to a fair trial(see People v Rowley, 127 AD3d884, 885 [2015]; People vBrown, 26 AD3d 392, 393 [2006]). Accordingly, the judgment must be reversed, and anew trial ordered.
In light of our determination, we need not reach the defendant's remaining contention.Balkin, J.P., Hall, Sgroi and Barros, JJ., concur.