| People v Powell |
| 2018 NY Slip Op 06768 [165 AD3d 842] |
| October 10, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Powell, Appellant. |
Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), for appellant, andappellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil JonFiretog, J.), rendered October 2, 2014, convicting him of murder in the second degree andcriminal possession of a weapon in the second 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, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
The defendant was convicted of murder in the second degree and criminal possession of aweapon in the second degree, upon a jury verdict, in connection with the shooting of anindividual in Brooklyn on September 22, 2011. The People presented the testimony of a witnesswho testified that he was with the defendant and observed the defendant take out a gun and shootthe victim. The witness further testified that after the shooting, the witness picked up the gun andfled with the defendant to an apartment the witness shared with his girlfriend. Other testimonyestablished that the victim was shot eight times, the murder weapon was found in the garbagecompactor room of the building into which the witness and the defendant fled, and shortly afterthe shooting the defendant, the witness, and the witness's girlfriend were taken into custody fromthe apartment into which the witness and the defendant fled. Testimony by an expert whoperformed DNA testing on the murder weapon and DNA analysis reports established that (1) aswab taken from the trigger and trigger guard of the murder weapon contained a mixture of DNAfrom at least three people, and the witness was a major contributor to that sample; (2) a swabtaken from the safety of the murder weapon contained a mixture of DNA from at least twopeople, and the DNA mixture found in that sample was approximately 1.11 billion times moreprobable if the sample originated from the defendant, the witness's girlfriend, and one unknown,unrelated person, than if it originated from the witness's girlfriend and two unknown, unrelatedpersons; and (3) the DNA mixture found in the sample taken from the safety was approximately616 million times more probable if the sample originated from the defendant and two unknown,unrelated persons than if it originated from three unknown, unrelated persons.
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 [*2]a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 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 theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
However, reversal of the judgment is required due to prosecutorial misconduct on summationand because the Supreme Court failed to provide the jury with an accomplice-in-fact instruction.Although these issues are unpreserved for appellate review (see CPL 470.05 [2]), wereach them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Moreover, reversal is required because the defendant was deprived of the effective assistance ofcounsel (see People v Baldi, 54 NY2d 137, 147 [1981]).
During her summation, the prosecutor stated that the "defendant's DNA was on the safety ofthat gun," and that "the science finds him guilty." The prosecutor further stated that "[t]he DNAhas spoken," and that "[t]he defendant's DNA, by being on that safety without even taking intoaccount [the witness's] testimony, makes him guilty." This was an overstatement andmisrepresentation of the statistical comparison testified to by the People's expert who performedthe DNA analysis of the swab taken from the safety of the murder weapon. "While the prosecutorwas entitled to fair comment on the DNA evidence available in this case, she was not entitled topresent the results in a manner that was contrary to the evidence and the science" (People v Wright, 25 NY3d 769,782 [2015]). "In light of the powerful influence of DNA evidence on juries, the opportunity forjuror confusion regarding the limited probative value of the DNA methodology employed in thiscase, and the qualified nature of the test results," the prosecutor engaged in misconduct when shemisrepresented and overstated the probative value of the DNA evidence by telling the jury thatthe defendant's DNA was on the safety of the murder weapon (id. at 771). As a result, thedefendant was deprived of his right to a fair trial (see People v Jones, 134 AD3d 1588, 1589 [2015]; cf. People v Ramsaran, 29 NY3d1070, 1071 [2017]).
The prosecutor also engaged in misconduct during her summation when she stated that shemet with the witness on several occasions, and during those times, "he did not know that hisDNA was on the trigger or the trigger guard or anywhere on that weapon," and she "did not tellhim that the DNA, his DNA was on that gun." The prosecutor's summation also included thefollowing statements: "But [the witness] told me in talking about this case in detail, he told mewhat he did"; "He told me that he held that firearm"; "Exactly how he told you on this standwhen the defendant dropped it, . . . he picked it up and quickly threw it into a blackbag so his girlfriend wouldn't see"; and "He's telling me and he doesn't even know what I have.Honesty. Straightforward about what happened." These statements by the prosecutor improperlyencouraged inferences of guilt based on facts not in evidence, improperly injected her owncredibility into the trial, and improperly vouched for the credibility of a witness for the People(see People v Fisher, 18 NY3d964, 966 [2012]; People v Paperno, 54 NY2d 294, 300-301 [1981]; People vPuglisi, 44 NY2d 748, 750 [1978]; People v Ashwal, 39 NY2d 105, 109-110 [1976];People v Collins, 12 AD3d 33,37 [2004]).
We further find that the defendant was deprived of the effective assistance of counsel, interalia, due to defense counsel's failure to object to the prosecutor's improper comments insummation (see People v Wright, 25 NY3d at 771; People v Fisher, 18 NY3d at967; cf. People v Ramsaran, 29 NY3d at 1071) and defense counsel's failure to request anaccomplice corroboration charge (seePeople v Douglas, 160 AD3d 436 [2018]). Since different inferences could reasonablybe drawn from the witness's testimony and from the forensic evidence as to the witness's role asan accomplice (see CPL 60.22), the lack of an accomplice corroboration charge alsowarrants a new trial (see People vSage, 23 NY3d 16, 29 [2014]; People v Douglas, 160 AD3d 436 [2018]; People v Riley, 152 AD3d 719,720 [2017]).
The defendant's remaining contentions need not be reached in light of our determination.Roman, J.P., Sgroi, Maltese and LaSalle, JJ., concur.