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PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL, DETAILED EXPLANATION OFFERED.

The Second Department reversed defendant’s conviction solely on the basis of prosecutorial misconduct. The court offered a detailed explanation of the misconduct:

“[I]n summing up to the jury, [the prosecutor] 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” … .

Here, during that summation, the prosecutor directly attacked defense counsel’s role and his integrity. Specifically, the prosecutor raised a hypothetical that bore no relation to the evidence in the case and then suggested what defense counsel would have argued with respect to that irrelevant hypothetical, in effect, implying that the defense arguments were the product of expediency. This tactic invited the jury to reject defense counsel’s argument not on the merits, but merely because it was raised by defense counsel. We strongly disapprove of this attack on the legitimacy of defense counsel’s role … . The prosecutor also improperly referenced facts not in evidence in order to call for speculation by the jury … and misstated critical testimony provided by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed … .

The prosecutor improperly appealed to the jury’s sympathy and generalized fear of crime by asserting that the defendant possessed a loaded gun while families and children from the “20 residential buildings” were “everywhere” having “cookouts” and celebrating the Fourth of July, and that because the various police officers “did their jobs,” “fortunately, nothing happened.” These comments implied to the jury that the defendant intended to commit crimes with which he was not charged … . Furthermore, immediately upon praising the police officers who “did their jobs,” the prosecutor turned to the jury and advised that “[n]ow it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty. This type of “safe streets” argument is inflammatory and has repeatedly been disapproved by the courts … .

The prosecutor also compared the defendant’s in-court demeanor and appearance to how he appeared on the night of his arrest in order to argue that the jury should not be fooled into considering him a “gentleman” … . The prosecutor went so far as to point to the defendant’s precinct photo and stated that his appearance there represented his “true colors.” People v Brisco, 2016 NY Slip Op 08878, 2nd Dept 12-28-16

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)

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