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IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.

The Fourth Department determined a reconstruction hearing should be held to determine whether defendant was competent to stand trial in 2008 when he entered a guilty plea. If a reconstruction hearing cannot be held, the plea should be vacated. At the time of the plea two examining psychiatrists came to opposite conclusions about defendant’s competency. Yet the guilty plea was accepted without holding a competency hearing:

“Article 730 of the Criminal Procedure Law sets out the procedures courts of this State must follow in order to prevent the criminal trial of [an incompetent] defendant” … . The CPL expressly provides that, “[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, . . . the court must conduct a hearing to determine the issue of capacity” … . “That section is mandatory and not discretionary” … , and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent … . People v Pett, 2017 NY Slip Op 02178, 4th Dept 3-24-17

CRIMINAL LAW (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/VACATE CONVICTION, MOTION TO (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)/COMPETENCY (CRIMINAL LAW, (IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED)

BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED.

The Fourth Department determined the both the grand jury and the trial jury should have been instructed on the defense of innocent possession of a weapon. The indictment was dismissed:

We agree with defendant … that reversal is required because Supreme Court erred in denying his request for a jury instruction on the defense of temporary innocent possession of the handgun. In order for a defendant to be entitled to such an instruction, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” … . Here, there were such facts. Defendant testified that he briefly struggled with a man who threatened him with a gun in front of his wife’s residence and, in the struggle, the gun fell to the ground. According to defendant’s testimony, after the assailant fled the scene, defendant picked up the gun from the street and immediately handed it to his wife, who then brought it into the home and hid it in the bedroom. * * *

We agree with defendant that the integrity of the grand jury proceeding was impaired, and we thus dismiss the two counts of the indictment of which defendant was convicted, without prejudice to the People to re-present any appropriate charges under those counts to another grand jury … . The prosecutor is required to instruct the grand jury on the law with respect to matters before it … . If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment … . People v Graham, 2017 NY Slip Op 02175, 4th Dept 3-24-17

 

CRIMINAL LAW (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/WEAPON, POSSESSION (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/GRAND JURY (BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)/DEFENSES (CRIMINAL LAW, BOTH THE GRAND JURY AND THE TRIAL JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEFENSE OF INNOCENT POSSESSION OF A WEAPON, INDICTMENT DISMISSED)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST PENAL INTEREST, SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon newly discovered evidence of third party culpability should have been granted. The statement at issue was admissible as a declaration against penal interest:

As a preliminary matter, it is well settled that a “less stringent standard [of admissibility] applies, where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him” … . Furthermore, the statements attributed to the third party “all but rule[] out a motive [for the third party] to falsify” the statement that it was he, and not defendant, who shot the victim … . Thus, in determining whether there is evidence constituting “sufficient supportive evidence of a declaration against penal interest[,] . . . [t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself . . . Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. Whether [the hearing] court believes the statement to be true is irrelevant . . . If the proponent of the statement is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt” … .

We conclude that defendant provided sufficient competent evidence at the 440.10 hearing to establish the “possibility of trustworthiness” of the third party’s statement to satisfy the requirement that the statement was a declaration against penal interest. In addition to the trial testimony that the third party was engaged in a dispute with the victim, the third party admitted to the defense investigator that he was present and engaged in a dispute with the victim and that he wrote the letters to defendant’s former attorney. Thus, we conclude that the third party is unavailable and that his alleged statement is “supported by independent proof indicating that it is trustworthy and reliable” and thus that it is a statement against penal interest … . Furthermore, the statement is “clearly exculpatory of the defendant” … . We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence … , that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” … . People v Mcfarland, 2017 NY Slip Op 02194, 4th Dept 3-24-17

 

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/EVIDENCE (DECLARATION AGAINST INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/CONVICTION, MOTION TO VACATE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)/DECLARATION AGAINST INTEREST (DEFENDANT’S MOTION TO VACATE HIS CONVICTION, BASED UPON NEWLY DISCOVERED EVIDENCE IN THE FORM OF A DECLARATION AGAINST INTEREST, SHOULD HAVE BEEN GRANTED)

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IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS.

Although the error was deemed harmless, the Fourth Department determined the People should not have been allowed, in this drug-offense trial, to impeach defendant with evidence of his prior drug-related convictions:

We agree with defendant that the court abused its discretion in ruling that the People could impeach him using his prior drug-related convictions and their underlying facts. In determining whether the People may impeach a defendant using prior criminal acts, a court must balance the probative value of the evidence on the issue of credibility against the risk of undue prejudice, as measured by the potential impact of the evidence and the possibility that its introduction would deter defendant from testifying in his or her defense (see People v Sandoval, 34 NY2d 371, 376-377). Certain factors should be considered, such as the prior conviction’s temporal proximity, the degree to which the prior conviction bears upon the defendant’s truthfulness, and the extent to which the prior conviction may be taken as evidence of the defendant’s propensity to commit the crime charged (see id.). It is well recognized that ” in the prosecution of drug charges, interrogation as to prior narcotics convictions . . . may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted of narcotics offenses are likely to be habitual offenders’ ” … . Here, the record reveals that the court considered only the temporal proximity of the prior convictions and defendant’s willingness to place his interests above those of society in general … . There is no indication that the court considered the special risk that defendant’s prior drug-related convictions might be taken by the jury as evidence of his propensity to commit the crime charged … . People v Brown, 2017 NY Slip Op 02190, 4th Dept 3-24-17

CRIMINAL LAW (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/EVIDENCE (CRIMINAL LAW, SANDOVAL, IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)/SANDOVAL (IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS)

ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE.

The Fourth Department noted that attempted assault in the first degree cannot serve as a predicate for conviction of criminal use of a firearm in the second degree:

… [T]he use or display of the firearm while committing the class C felony of attempted assault in the first degree cannot serve as the predicate for his conviction of criminal use of a firearm in the second degree inasmuch as the use or display of that same firearm satisfied an element of attempted assault in the first degree … . Although defendant failed to preserve that contention for our review … , we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), and we modify the judgment by reversing that part convicting him of criminal use of a firearm in the second degree and dismissing that count of the indictment. People v Butler, 2017 NY Slip Op 02186, 4th Dept 3-24-17

CRIMINAL LAW (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/ASSAULT (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)/FIREARM, CRIMINAL USE OF (ATTEMPTED ASSAULT IN THE FIRST DEGREE COULD NOT SERVE AS A PREDICATE FOR CONVICTION OF CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE)

DEFENDANT DID NOT CONSENT TO THE ENTRY AND SEARCH OF HIS HOME, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The Court of Appeals, reversing the Appellate Division, determined the evidence did not support the conclusion that defendant consented to the entry and search of his home. The motion to suppress, therefore, should have been granted. The decision does not discuss the facts and indicates the reasoning of the Appellate Division dissent was followed. People v Freeman, 2017 NY Slip Op 02090, CtApp 3-23-17

CRIMINAL LAW (DEFENDANT DID NOT CONSENT TO THE ENTRY AND SEARCH OF HIS HOME, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESS, MOTION TO (CRIMINAL LAW, DEFENDANT DID NOT CONSENT TO THE ENTRY AND SEARCH OF HIS HOME, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (CRIMINAL LAW, DEFENDANT DID NOT CONSENT TO THE ENTRY AND SEARCH OF HIS HOME, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY.

The Third Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant alleged he was not informed of the intoxication defense prior to pleading guilty:

… [R]egarding defendant’s claim in his CPL 440.10 motion that counsel’s representation was ineffective for failing to inform him that the required element of criminal intent for burglary in the second degree (see Penal Law § 140.25) could be negated by the defense of intoxication[:] The victims’ statements to police include the observations that defendant “looked high and his speech was slow” and that defendant appeared “either drunk or stoned.” Additionally, his criminal record reflects a history of alcohol-related arrests and convictions. Insofar as a defendant’s knowledge that the element of intent may be negated by the potential defense of intoxication is essential to a knowing and voluntary plea … and there is no indication that defendant was aware of the intoxication defense and knowingly waived his right to present such evidence, we are persuaded that defendant has raised an issue sufficient to require a hearing … . People v Perry, 2017 NY Slip Op 02095, 3rd Dept 3-23-17

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INEFFECTIVE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/VACATE CONVICTION, MOTION TO DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INTOXICATION DEFENSE (MOTION TO VACATE CONVICTION, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)

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AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE.

The Third Department, in a full-fledged opinion by Justice Garry, determined the Department of Corrections and Community Services (DOCCS) did not give the petitioner, an indigent sex offender who had completed his sentence, adequate assistance in finding housing in a residential treatment facility (RTF) upon release. Although petitioner had been provided RTF housing by the time the matter was heard, the Third Department reached the issue as an exception to the mootness doctrine. DOCCS’s insufficient assistance in finding RTF housing for released sex offenders was deemed a recurring problem that needed to be addressed:

We agree with petitioner that, due to the “recognized difficulty in securing acceptable housing” for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing … . Given the transitory purpose of RTFs and considering the lack of appellate precedent regarding challenges to RTF placements and programing, we further recognize that the phenomenon typically evades review … . Finally, we find the issues novel and substantial given that petitioner’s challenges concern whether RTFs are serving their distinct purpose, as contrasted with confinement facilities generally … . * * *

The feasibility and appropriateness of the specific means by which DOCCS may choose to provide affirmative assistance in locating housing to petitioner are, of course, discretionary and beyond the reach of judicial review unless they are shown to be irrational, arbitrary and capricious. Accordingly, we may not specify the particular actions that DOCCS should have taken. Nevertheless, its passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates, falls far short of the spirit and purpose of the legislative obligation imposed upon DOCCS to assist in this process. Matter of Gonzalez v Annucci, 2017 NY Slip Op 02099, 3rd Dept 3-23-17

CRIMINAL LAW (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/SEX OFFENDERS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/RESIDENTIAL TREATMENT FACILITY (SEX OFFENDERS, AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/APPEALS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)

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WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS.

The Court of Appeals determined the issue whether defendant made an unequivocal request for counsel presented a mixed question of law and fact which cannot be heard by the Court of Appeals. People v Slocum, 2017 NY Slip Op 02089, CtApp 3-23-17

CRIMINAL LAW (WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)/ATTORNEYS (CRIMINAL LAW, APPEALS, WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)

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PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED.

The Second Department, reversing defendant’s conviction, determined the prosecutor’s remarks in summation amounted to prosecutorial misconduct, a 911 call made by a non-testifying witness should not have been admitted as present sense impression or an excited utterance, and the cross-examination of the complainant was unduly restricted. With respect to the prosecutor’s summation, the court wrote:

Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that “the witnesses who came before you provided truthful testimony that makes sense,” that they gave the “kind of truthful and credible testimony that you can rely on,” and that one witness had “no reason . . . to be anything but truthful with the 911 operator” … . In describing a complainant, the prosecutor asserted that he was “exactly what you hoped to see from someone who had troubles with the law in their youth,” but had “changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,” which was a clear attempt to appeal to the sympathy of the jury … . To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced … . Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a “saint” for answering so many questions … . Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 … . The cumulative effect of these improper comments deprived the defendant of a fair trial … . People v Casiano, 2017 NY Slip Op 02053, 2nd Dept 3-22-17

CRIMINAL LAW (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/PROSECUTORIAL MISCONDUCT (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/HEARSAY (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/911 CALL (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED

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