In reversing defendant’s conviction for criminal possession of a weapon, the Fourth Department determined a new trial was required because defendant’s statements should have been suppressed, and because of prosecutorial misconduct. Defendant was a passenger in a car which was stopped for having a suspended registration. After the driver was given a ticket, defendant asked if he could leave. He was told by the police he could not leave until an inventory search of the car was completed. Defendant’s statements were made subsequently. The Fourth Department held that, once the ticket was given to the driver, the police had no reason to detain defendant further. The Fourth Department addressed the prosecutorial misconduct in the interest of justice (despite the lack of preservation). With respect to prosecutorial misconduct, the court wrote:
During cross-examination, the prosecutor questioned the driver of the vehicle regarding an out-of-court conversation between them, asking her whether she came to his office and admitted that the defendant “[tried] to get [her] to come and take the blame for the gun.” After the witness denied for the second time that such a conversation had taken place, the prosecutor rhetorically asked, “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” By challenging the witness with respect to the out-of-court conversation, the prosecutor both improperly interjected his personal opinion as to the truthfulness of the testimony and suggested to the jury that his own, unsworn version of events should be credited … .
In addition, instances of prosecutorial misconduct on summation deprived defendant of his right to a fair trial. The prosecutor improperly denigrated defendant’s case by referring to certain contentions as “[a]ll this nonsense,” made repeated non sequiturs distinguishing the case from the John F. Kennedy assassination, and asserted that the defense was “twisting things” and employing “tricks” … . The prosecutor compounded those statements by consistently commenting on witness credibility, calling the defense witnesses “a cast of characters,” “people com[ing] out of the woodwork,” and specifically referring to one witness as “a piece of work.” The prosecutor accused the defense witnesses of lying, and also argued that one could not believe a certain witness who had a lawyer advising her while testifying, stating that he “couldn’t tell if those were her words or her lawyer’s words when she was talking.” Not only did the prosecutor state his belief that witnesses had lied, he also alleged that the witnesses must have met secretly in order to plan and collude regarding their testimony. That was patently improper … .
In addition to criticizing defendant’s case and witnesses, the prosecutor also engaged in misconduct on summation by suggesting that an acquittal would require the jury to find a conspiracy by law enforcement … , by improperly suggesting that defendant bore a burden of proof … , and by misstating a key point of law regarding detention incident to a traffic stop… , People v Porter, 2016 NY Slip Op 00852, 4th Dept 2-5-16
CRIMINAL LAW (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/EVIDENCE (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/SUPPRESSION (MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/ATTORNEYS (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/PROSECUTORIAL MISCONDUCT (NEW TRIAL ORDERED)