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DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. On direct, the complainant did not indicate defendant participated in the robbery, but rather was simply present. Defense counsel elicited testimony from the complainant on cross which alleged defendant’s direct participation by pulling her to the ground from behind. Defense counsel erroneously believed complainant had testified in the grand jury that she did not know who pulled her to the ground. However a review of the grand jury minutes found no such testimony, indicating defense counsel was not adequately prepared. In addition, the Second Department held that defense counsel’s failure to object to prosecutorial misconduct during summation amounted to ineffective assistance. With regard to the prosecutorial misconduct, the court wrote:

Defense counsel failed to object to multiple improper summation statements made by the prosecutor. For example, among other improper comments, the prosecutor told the jury that the defendant was “cocky” and “brazen,” and that he “did not deserve” the benefit of the doubt given to him by the complainant on the night at issue; that the deliberations “should not take [the jury] very long”; that defense counsel “harped” on certain facts; that the jury could believe the complainant and not the defendant “who sits [during trial] with his buttoned up shirt hunched over”; and that the jury could rely on the complainant’s testimony “[b]ecause no amount of lawyering or manipulating of her words and the details of that event were going to change the way she told it to [the jury].” The prosecutor also reiterated, without objection, certain improper testimony of the complainant that the trial court had erroneously, over defense counsel’s objection, permitted the jury to hear regarding “how what [the defendant] did changed [the complainant’s] life.” The prosecutor reminded the jury that the complainant “can’t even put her trash out alone anymore,” and because of what the defendant did, the complainant “had to move.” These patently improper comments by the prosecutor vouched for the credibility of the complainant and the strength of the People’s case, appealed to the jury’s sympathy, disparaged the defendant, and denigrated the defense … . As no objection was made to such statements, the jury was able to consider these improper comments of the prosecutor … . People v McCray, 2016 NY Slip Op 04240, 2nd Dept 6-1-16

CRIMINAL LAW (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S ELICITATION OF DAMAGING EVIDENCE, LACK OF PREPARATION, AND FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL)

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