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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department, in the interest of justice, reversed the defendant's murder conviction because (1) the trial judge failed to give the accomplice in fact jury instruction, (2) prosecutorial misconduct and (3) ineffective assistance in failing to object to the prosecutor's statements and failure to request the accomplice instruction:

During her summation, the prosecutor stated that the “defendant's DNA was on the safety of that gun,” and that “the science finds him guilty.” The prosecutor further stated that “[t]he DNA has spoken,” and that “[t]he defendant's DNA, by being on that safety without even taking into account [the witness's] testimony, makes him guilty.” This was an overstatement and misrepresentation of the statistical comparison testified to by the People's expert who performed the DNA analysis of the swab taken from the safety of the murder weapon. “While the prosecutor was entitled to fair comments on the DNA evidence available in this case, she was not entitled to present the results in a manner that was contrary to the evidence and the science” … . “In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results,” the prosecutor engaged in misconduct when she misrepresented and overstated the probative value of the DNA evidence by telling the jury that the defendant's DNA was on the safety of the murder weapon (id. at 771). As a result, the defendant was deprived of his right to a fair trial … .

The prosecutor also engaged in misconduct during her summation when she stated that she met with the witness on several occasions, and during those times, “he did not know that his DNA was on the trigger or the trigger guard or anywhere on that weapon,” and she “did not tell him that the DNA, his DNA was on that gun.” The prosecutor's summation also included the following statements: “But [the witness] told me in talking about this case in detail, he told me what he did”; “He told me that he held that firearm”; “Exactly how he told you on this stand when the defendant dropped it, . . . he picked it up and quickly threw it into a black bag 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 improperly encouraged inferences of guilt based on facts not in evidence, improperly injected her own credibility into the trial, and improperly vouched for the credibility of a witness for the People … .

We further find that the defendant was deprived of the effective assistance of counsel, inter alia, due to defense counsel's failure to object to the prosecutor's improper comments in summation … and defense counsel's failure to request an accomplice corroboration charge … . People v Powell, 2018 NY Slip Op 06768, Second Dept 10-10-18

CRIMINAL LAW (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/APPEALS (CRIMINAL LAW, ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/INEFFECTIVE ASSISTANCE  (ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT'S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))

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