THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.