| People v Flowers |
| 2017 NY Slip Op 04990 [151 AD3d 1843] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Joe N.Flowers, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), renderedAugust 19, 2011. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcourse of sexual conduct against a child in the second degree (Penal Law § 130.80[1] [b]). Defendant contends on appeal that he was denied his right to a fair trial based uponprosecutorial misconduct, particularly during summation. Although defendant did not object toall of the statements alleged on appeal to constitute prosecutorial misconduct, and thus failed topreserve for our review his claims with respect to those particular statements, we neverthelessexercise our power to review all of his claims of prosecutorial misconduct as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
The People correctly concede that the prosecutor improperly appealed to the sympathy of thejury (see People v Presha, 83 AD3d1406, 1408 [2011]). The People also correctly concede that the prosecutor improperlyimplied that a potential adolescent witness did not testify because he felt "guilt" about defendant'sactions; County Court, however, properly sustained defense counsel's objection to theprosecutor's statement and gave a curative instruction, which the jury is presumed to havefollowed (see generally People vAllen, 78 AD3d 1521, 1521 [2010], lv denied 16 NY3d 827 [2011]). Thus, withrespect to that instance of misconduct, we conclude that any prejudice was alleviated (seeid.). The People also correctly concede that the prosecutor denigrated defense counsel bystating that he intentionally attempted to confuse an adolescent prosecution witness. We furtherconclude that, in an attempt to discredit the testimony of an adolescent defense witness, theprosecutor misstated the evidence with respect to whether the witness had spoken with defendantregarding the allegations against him. Although the prosecutor properly responded to defensecounsel's remarks during summation attacking the credibility of the victim (see People v Walker, 117 AD3d1441, 1441-1442 [2014]; People vMartinez, 114 AD3d 1173, 1173 [2014], lv denied 22 NY3d 1200 [2014]), shealso improperly vouched for the credibility of the victim's testimony (see Presha, 83AD3d at 1408). Furthermore, the prosecutor improperly acted as an unsworn expert by describingdefendant's behavior towards the victim as "classic grooming behavior," and as an unswornwitness with respect to reasons why the victim delayed in reporting what had occurred (see People v Fisher, 18 NY3d 964,966 [2012]).
We nevertheless conclude that reversal is not mandated here inasmuch as "the misconduct[did] not substantially prejudice[ ] . . . defendant's trial" (People v Galloway,54 NY2d 396, 401 [1981]). It is axiomatic that we must consider whether "the conduct of theprosecutor 'has caused such substantial prejudice to the defendant that he [or she] has beendenied due process of law. In measuring whether substantial prejudice has occurred, one mustlook at the [*2]severity and frequency of the conduct, whether thecourt took appropriate action to dilute the effect of that conduct, and whether review of theevidence indicates that without the conduct the same result would undoubtedly have beenreached' " (People v Griffin,125 AD3d 1509, 1511 [2015]). Although there were several instances of misconduct duringthe prosecutor's summation, the court thoroughly instructed the jury before summations that,inter alia, nothing that an attorney says during his or her summation is evidence, and that the jurymust decide the case only on the evidence and the law, and not on anything that is said during asummation. The court also gave curative instructions after the objections it sustained.Furthermore, the evidence against defendant was overwhelming (cf. Fisher, 18 NY3d at966; People v Jones, 134 AD3d1588, 1589 [2015]; Griffin, 125 AD3d at 1512; People v Mott, 94 AD2d415, 419 [1983]), and thus we conclude that, "without the conduct[,] the same result wouldundoubtedly have been reached" (Mott, 94 AD2d at 419).
We note that we have recently considered appeals from several judgments in casesprosecuted by the Monroe County District Attorney's Office that have resulted in reversal basedupon prosecutorial misconduct (see Fisher, 18 NY3d at 965; Jones, 134 AD3d at1588; Griffin, 125 AD3d at 1509), or in which we have admonished the prosecutor formisconduct (see People v Gibson,134 AD3d 1512, 1513 [2015], lv denied 27 NY3d 1151 [2016]; Presha, 83AD3d at 1408), and most of those cases involved charges of sexual abuse against a child. It isundisputed that, three months before the trial herein, we admonished the same prosecutor inPresha (83 AD3d at 1408), and that the Court of Appeals reversed the judgment inFisher (18 NY3d at 965) based upon this same prosecutor's misconduct. We thereforetake this opportunity to admonish again the prosecutor in this case, in particular, and prosecutorsin the Monroe County District Attorney's Office, in general, that " '[i]t is not enough for[a prosecutor] to be intent on the prosecution of [the] case. Granted that [the prosecutor's]paramount obligation is to the public, [he or she] must never lose sight of the fact that adefendant, as an integral member of the body politic, is entitled to a full measure of fairness. Putanother way, [the prosecutor's] mission is not so much to convict as it is to achieve a justresult' " (People v Bailey, 58 NY2d 272, 276-277 [1983], quoting People vZimmer, 51 NY2d 390, 393 [1980]). Indeed, "[p]rosecutors play a distinctive role in thesearch for truth in criminal cases. As public officers they are charged not simply with seekingconvictions but also with ensuring that justice is done. This role gives rise to specialresponsibilities—constitutional, statutory, ethical, personal—to safeguard theintegrity of criminal proceedings and fairness in the criminal process" (People vSantorelli, 95 NY2d 412, 420-421 [2000]).
We conclude that, contrary to defendant's further contention, he was not deprived a fair trialbased upon the court's allegedly erroneous evidentiary rulings to which he objected (see People v Smith, 21 AD3d1340, 1340 [2005], lv denied 5 NY3d 885 [2005]). Finally, we have considereddefendant's remaining contentions and conclude that they are without merit.Present—Peradotto, J.P., Carni, Lindley, Troutman and Scudder, JJ.