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ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT OBJECT TO THE PROSECUTOR’S REMARKS AND REVERSAL IN THE INTEREST OF JUSTICE WAS NOT WARRANTED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined the prosecutor had exceeded the bounds of the propriety but the prosecutorial misconduct, which was not preserved for appeal by objection, did not warrant reversal. Two dissenting justices argued the misconduct warranted reversal:

We agree with defendant, however, that the prosecutor exceeded the bounds of propriety by cross-examining a defense witness regarding an uncharged crime that defendant allegedly committed and by placing his own credibility in issue while doing so. “A prosecutor may not refer to matters not in evidence or call upon the jury to draw conclusions that cannot fairly be inferred from the evidence” … and, in this case, the prosecutor strayed outside ” the four corners of the evidence’ ” when he implied that defendant committed different crimes … . Nevertheless, reversal is unwarranted where a prosecutor’s error has not substantially prejudiced a defendant’s trial … and, although the dissent is correct that we have previously admonished this prosecutor, the instant trial occurred before that admonition. Therefore, although we strongly condemn the prosecutor’s conduct during cross-examination, we conclude that it does not warrant reversal here … .

From the Dissent: We agree with defendant that the prosecutor caused him substantial prejudice during the cross-examination of a defense witness. ” It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged’ ” … . …

We further agree with defendant that remarks in the prosecutor’s summation were inflammatory and prejudicial. The prosecutor referred to defendant’s witnesses as “liars,” compounding the prejudicial effect of his improper cross-examination … . More egregiously, the prosecutor referred to defendant as a “monster” four times. People v Fick, 2018 NY Slip Op 08788, Fourth Dept 12-21-18

 

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