IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.