The Third Department, reversing the conviction, determined preclusion of defendant’s medical evidence in this driving while intoxicated case was an abuse of discretion and the prosecutor’s cross-examination defendant and summation were improper:
“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” … . … Here, County Court’s own inquiry readily identified measures to alleviate any prejudice to the People … . Since a less drastic remedy was readily available, we conclude that the outright preclusion of this evidence was an abuse of discretion. …
… During cross-examination, the prosecutor utilized documentation provided by the defense to question defendant as to his winning an Iron Man … and his being recommended for enrollment in the US Army Ranger School … . Certainly this questioning was an accurate portrayal of defendant’s physical fitness prior to being injured during his military service and fair game to a point as to whether defendant was capable of performing the field sobriety tests. The portrayal, however, disregards defendant’s actual medical condition as shown in the precluded medical records. This discrepancy came to a head during summation, where the prosecutor stated, “I just didn’t really know what to make” of defendant’s claimed impairments. She continued, “I’m surprised” given defendant’s Iron Man award, and concluded, “I don’t understand what happened . . . when he couldn’t perform a standardized field sobriety test. It just doesn’t make any sense to me.”
A prosecutor may not, even during summation, express his or her personal opinion challenging the veracity of the evidence … . To express personal surprise as to defendant’s claim of incapacity, while in possession of defendant’s medical records, was disingenuous and improper. People v O’Brien, 2016 NY Slip Op 04471. 3rd Dept 6-9-16
CRIMINAL LAW (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)