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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the photographs of the complainant’s genitals and anus were irrelevant and should not have been admitted in this sex-offense case. In addition, the court criticized the prosecutor’s remarks in summation (unpreserved errors):

“Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” … . Here, the complainant’s pediatrician, who was called as a witness by the prosecutor, testified that there were no injuries to the complainant’s genitals or anus, and that she did not expect to see any injury based upon the complainant’s report. Nevertheless, the prosecutor then asked the pediatrician to approach the jurors and display the photographs to them. Under the circumstances of this case, the photographs were irrelevant, and served no purpose other than to inflame the emotions of the jury and to introduce into the trial an impermissible sympathy factor … . The error was then compounded when the prosecutor argued in summation that the complainant had to “get on a table and open up her legs and have her genitals photographed to be shown to 15 strangers . . . What did she gain out of this? Nothing.” The improper admission of the photographs cannot be deemed harmless under the circumstances of this case … .

Since there must be a new trial, we note that, although the issue is unpreserved for appellate review, the prosecutor engaged in multiple instances of improper conduct during summation … . For instance, the prosecutor attempted to arouse the sympathies of the jurors … . Additionally, while discussing the character of the defendant, who was a church pastor at the time of trial, the prosecutor referenced the sexual abuse scandals involving the Catholic Church and Orthodox Jewish communities. The prosecutor also pointed out that during jury selection, a prospective juror expressed that she did not feel comfortable sitting on this case because of all the priests who have gotten away with child abuse, and that another prospective juror stated that a family member was raped by a member of the clergy. “[I]n summing up to the jury, counsel must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . People v Lewis, 2019 NY Slip Op 09023, Second Dept 12-18-19

 

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