| People v Fick |
| 2018 NY Slip Op 08788 [167 AD3d 1484] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alan Fick, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo, for respondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), rendered July24, 2014. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree(two counts), grand larceny in the fourth degree (three counts) and unlawful imprisonment in thefirst degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, oftwo counts of burglary in the first degree (Penal Law § 140.30 [3], [4]), three countsof grand larceny in the fourth degree (§ 155.30 [4], [7], [8]), and one count ofunlawful imprisonment in the first degree (§ 135.10). Contrary to defendant'scontention, the evidence, viewed in the light most favorable to the People (see People v Gordon, 23 NY3d643, 649 [2014]), is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Defendant contends that County Court erred in refusing to suppress statements that he madeto the police after he invoked his right to counsel. We reject that contention. The police officerswho questioned defendant testified at the suppression hearing that defendant waived hisMiranda rights and did not request an attorney. The court did not credit defendant'scontrary testimony that he requested counsel before or during the questioning (see People v Briggs, 124 AD3d1320, 1321 [4th Dept 2015], lv denied 25 NY3d 1198 [2015]). "We accord greatweight to the determination of the suppression court because of its ability to observe and assessthe credibility of the witnesses," and we see no reason to disturb its determination (id.[internal quotation marks omitted]; see People v Andrus, 77 AD3d 1283, 1283 [4th Dept 2010], lvdenied 16 NY3d 827 [2011]).
Defendant did not object to any of the alleged instances of prosecutorial misconduct duringthe prosecutor's opening and closing statements or during cross-examination of a defensewitness, and therefore defendant failed to preserve for our review his contention that he wasthereby deprived of a fair trial (seePeople v Lane, 106 AD3d 1478, 1480 [4th Dept 2013], lv denied 21 NY3d 1043[2013]; People v Rumph, 93 AD3d1346, 1347 [4th Dept 2012], lv denied 19 NY3d 967 [2012]). In any event,defendant's contention lacks merit. We reject defendant's contention that the prosecutor appealedto the jurors' sympathy by describing the victim as an elderly 71-year-old man during his openingstatement (cf. People v Presha, 83AD3d 1406, 1408 [4th Dept 2011]). Additionally, contrary to defendant's contention that theprosecutor vouched for the credibility of a witness during summation, we conclude that the"isolated comment was a fair response to the comments of defense counsel on summationattacking the conduct and credibility of th[at] witness[ ] . . . and did not deprivedefendant of a fair trial" (People v Smart, 224 AD2d 999, 999-1000 [4th Dept 1996],lv denied 88 NY2d 854 [1996]). Furthermore, we conclude that most of the remainingalleged instances of misconduct during the prosecutor's summation "were fair comment on theevidence and fair response to defense counsel's summation . . . and, to the extentthat the prosecutor made inappropriate remarks, . . . they were 'not so pervasive oregregious as to deny defendant a fair trial' " (People v Edwards, 159 AD3d 1425, 1426 [4th Dept 2018], lvdenied 31 NY3d 1116 [2018]; seePeople v Grady, 40 AD3d 1368, 1374-1375 [3d Dept 2007], lv denied 9 NY3d923 [2007]).
We agree with defendant, however, that the prosecutor exceeded the bounds of propriety bycross-examining a defense witness regarding an uncharged crime that defendant allegedlycommitted and by placing his own credibility in issue while doing so. "A prosecutor may notrefer to matters not in evidence or call upon the jury to draw conclusions that cannot fairly beinferred from the evidence" (People vCollins, 12 AD3d 33, 39-40 [1st Dept 2004]). Indeed, "[i]t is fundamental that the jurymust decide the issues on the evidence" (People v Ashwal, 39 NY2d 105, 109 [1976])and, in this case, the prosecutor strayed outside " 'the four corners of theevidence' " when he implied that defendant committed different crimes (id.).Nevertheless, reversal is unwarranted where a prosecutor's error has not substantially prejudiceda defendant's trial (see People v Galloway, 54 NY2d 396, 401 [1981]) and, although thedissent is correct that we have previously admonished this prosecutor, the instant trial occurredbefore that admonition. Therefore, although we strongly condemn the prosecutor's conductduring cross-examination, we conclude that it does not warrant reversal here (see People vDat Pham, 283 AD2d 952, 952 [4th Dept 2001], lv denied 96 NY2d 900 [2001]; see generally People v Jackson, 108AD3d 1079, 1080 [4th Dept 2013], lv denied 22 NY3d 997 [2013]; People v Miller, 104 AD3d 1223,1223-1224 [4th Dept 2013], lv denied 21 NY3d 1017 [2013]).
Defendant also contends that he was denied effective assistance of counsel based on defensecounsel's failure to object to the alleged instances of prosecutorial misconduct. We reject thatcontention. As noted, although we condemn the prosecutor's actions, we nevertheless concludethat defendant was not deprived of a fair trial by those actions, and we therefore further concludethat "defense counsel's failure to object to the alleged instances of prosecutorial misconduct didnot constitute ineffective assistance of counsel" (Edwards, 159 AD3d at 1426; see People v Swan, 126 AD3d1527, 1527 [4th Dept 2015], lv denied 26 NY3d 972 [2015]).
Finally, the sentence is not unduly harsh or severe.
All concur except DeJoseph, and Troutman, JJ., who dissent in part and vote to reverse inaccordance with the following memorandum.
DeJoseph and Troutman, JJ. (dissenting). We respectfully dissent in part because we disagreewith the majority's conclusion that the prosecutor's actions do not warrant reversal in thiscase.
Initially, as acknowledged by the majority, this is not the first time that this prosecutor hasbeen admonished by this Court (seePeople v Lowery, 158 AD3d 1179, 1180 [4th Dept 2018], lv denied 31 NY3d1119 [2018]). In Lowery, we noted that "the prosecutor's ill-advised decision to clapsarcastically during summation as he was describing defendant's efforts to report a change ofaddress is entirely inconsistent with the standards of conduct expected of prosecutors, and wetherefore admonish the prosecutor for such conduct" (id.).
Although the majority is correct that defendant failed to preserve for our review hiscontention that he was deprived of a fair trial by prosecutorial misconduct (see id. at1179), we conclude that his contention warrants the exercise of our power to review it as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]) given "our overridingresponsibility to ensure that the cardinal right of a defendant to a fair trial is respected in everyinstance" (People v Scheidelman,125 AD3d 1426, 1427 [4th Dept 2015] [internal quotation marks omitted]). Based upon thatreview, we agree with defendant that he was deprived of a fair trial, and we would thereforereverse the judgment and grant a new trial on counts three through eight of the indictment.
We agree with defendant that the prosecutor caused him substantial prejudice during thecross-examination of a defense witness. " 'It is fundamental that evidence concerning adefendant's uncharged crimes or prior misconduct is not admissible if it cannot logically beconnected to some specific material issue in the case, and tends only to demonstrate that thedefendant was predisposed to commit the crime charged' " (People v Cornell, 110 AD3d 1443,1445 [4th Dept 2013], lv denied 22 NY3d 1087 [2014]). During his cross-examination ofthe defense witness, the prosecutor implied that a month before the commission of the instantcrimes, defendant broke the witness's vehicle windows in retaliation for the witness's use ofdrugs that defendant had intended for sale. When the witness denied knowing who broke hiswindows, the prosecutor stated, "I would bet my career that person is in the courtroom." Weconclude that, in making that statement, the prosecutor "made [himself] an unsworn witness andinjected the integrity of the District Attorney's office into the case" (People v Morgan, 111 AD3d 1254,1256 [4th Dept 2013]). Moreover, the prosecutor improperly implied that defendant committed acrime that " 'was irrelevant to any issue in the case and only could have prejudiceddefendant by suggesting to the jury that he was an erratic and potentially dangerous person whohad the propensity to commit the crime[s] at issue' or some other criminal act"(Scheidelman, 125 AD3d at 1428; see People v Ashwal, 39 NY2d 105, 110[1976]; People v Downing, 112 AD2d 24, 26 [4th Dept 1985]).
We further agree with defendant that remarks in the prosecutor's summation wereinflammatory and prejudicial. The prosecutor referred to defendant's witnesses as "liars,"compounding the prejudicial effect of his improper cross-examination (see People vFiori, 262 AD2d 1081, 1081 [4th Dept 1999]; People v Miller, 174 AD2d 901, 903[3d Dept 1991]). More egregiously, the prosecutor referred to defendant as a "monster" fourtimes. Such name-calling was improper and served no purpose other than to suggest to the jurorsthat defendant was inhuman and dangerous (see People v Jones, 134 AD3d 1588, 1589 [4th Dept 2015]; People v Almethoky, 9 AD3d 882,882 [4th Dept 2004]; People v Connette, 101 AD2d 699, 700 [4th Dept 1984]).
We recognize, as does the majority, that " '[r]eversal is an ill-suited remedy forprosecutorial misconduct' " (People v Galloway, 54 NY2d 396, 401 [1981]).Nevertheless, in light of the severity and frequency of the prosecutor's misconduct, the court'sfailure to take any action to dilute the effect thereof, and the fact that the evidence of defendant'sguilt is less than overwhelming (seePeople v Griffin, 125 AD3d 1509, 1512 [4th Dept 2015]), we cannot conclude thatabsent such misconduct the same result would undoubtedly have been reached (see Jones,134 AD3d at 1589; Griffin, 125 AD3d at 1512; People v Mott, 94 AD2d 415, 419[4th Dept 1983]). We therefore agree with defendant that reversal is required.Present—Whalen, P.J., Smith, Peradotto, DeJoseph and Troutman, JJ.