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PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, ordering a new trial, determined prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor denigrated the defense and disparaged the defendant, referring to his self-defense claim as “ridiculous,” “insulting,” and “ludicrous,” and informing the jury that the defendant would “tell you anything” in an effort to “sell you” a story. The prosecutor described the defendant as a “hothead” and a “punk” who could not “take [a] beating like a man” … . Moreover, the prosecutor impinged on the defendant’s right to remain silent before arrest by arguing that he could not have acted in self-defense during the altercation because he did not call the 911 emergency number … . Further, the prosecutor improperly invoked the jury’s sympathy for the complainant … , vouched for the complainant’s credibility … , and interjected her own sense of moral retribution with respect to the complainant’s entitlement to use physical force against the defendant, while misleading the jury as to the law on justification … . People v Dawson, 2019 NY Slip Op 08689, Second Dept 12-4-19

 

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ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE SERVICE... DEFENDANT DEMONSTRATED HE WAS UNLIKELY TO REOFFEND; THEREFORE, DESPITE THE SERIOUSNESS...