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The Prosecutor’s Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor’s Repeated Questioning of the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

The Second Department reversed defendant’s murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense’s expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant’s expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct … unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree … . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

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Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice

The Second Department determined defendant’s weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its “interest of justice” power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant’s testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn “restaurant closing-time” information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn … .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor’s cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney’s office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. … . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop … .

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial … . Similarly, the prosecutor’s questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone … . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion … .

In addition, the prosecutor’s statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already “played out this exact scenario in his mind . . . every time he left his house with that gun” was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest … .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

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Evidence of a Defendant’s Silence In Response to Questions Posed by the Police Cannot Be Introduced in the People’s Case-In-Chief

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined that state evidentiary rules were violated by testimony, during the People’s case-in-chief, describing the defendant’s silence following some of the questions asked by the police during interrogation. The court noted that although there are (very) limited circumstances when a defendant’s silence, or failure to give a timely exculpatory explanation, can be used to impeach a defendant who takes the stand, no such flexibility applies to the case-in-chief.  There can be many reasons for a defendant’s silence in response to a question, so the probative value of silence is limited.  On the other hand, there is a real danger a jury will interpret a defendant’s silence as evidence of guilt. The error was not harmless as a matter of law–defendant’s conviction was reversed and a new trial ordered:

If silence could constitute an answer, then the People could meet their burden simply by asking a question. Moreover, evidence of a defendant’s selective silence “is of extremely limited probative worth” … . A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all … . Furthermore, the potential risk of prejudice from evidence of a defendant’s selective silence is even greater than the risk to a defendant who chooses to remain totally silent. Jurors are more likely to construe a defendant’s refusal to answer certain questions as an admission of guilt if the defendant has otherwise willingly answered other police inquiries. The ambiguous nature and limited probative worth of a defendant’s selective silence is outweighed by the substantial risk of prejudice to the defendant from admission of such evidence … . Evidence of a defendant’s selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as “a device for impeachment” of a defendant’s trial testimony in limited and unusual circumstances … .

The People’s use of defendant’s selective silence in this case was improper for another reason. In her opening statement, the prosecutor told the jury that defendant did not admit or deny the accusations when he spoke to the detective. Furthermore, during direct examination of the detective, the prosecutor elicited testimony establishing not only that defendant did not answer when asked whether he had sex with the victim, but also that he did not deny it either. In addition to using defendant’s selective silence as a purported impeachment device during their direct case, the People also invited the jury to infer an admission of guilt from defendant’s failure to deny the accusations. The risk that the jury made such an impermissible inference is substantial where, as here, defendant selectively answered some police questions but not others, and the court refused to provide any curative instruction. The prosecutor’s comments regarding defendant’s selective silence during opening statements were improper, and the court erred in allowing testimony concerning defendant’s selective silence at trial, inasmuch as the comments and testimony allowed the jury to “draw an unwarranted inference of guilt” … . People v Williams, 2015 NY Slip Op 02866, CtApp 4-7-15

 

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Introduction of “Prompt Outcry” Evidence in a Rape Trial, After the People, Pre-Trial, Had Informed Defense Counsel and the Court There Would Be No Evidence of a “Prompt Outcry,” Required Reversal

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversed defendant’s conviction in a rape case because the People, prior to trial, indicated there would be no “prompt outcry” evidence and, at trial, “prompt outcry” evidence was introduced.  Because defense counsel had formulated trial strategy and conducted voir dire with the understanding the first time the victim told anyone about the alleged offense was six months after the incident, the prejudice resulting from the “surprise” evidence was substantial:

Based on this record, the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. Undisputedly, complainant’s testimony that she told her friend “what happened” conveyed to the jury that she had engaged in sexual intercourse with defendant that evening. Although this testimony was relevant, we have observed that relevancy, alone, does not render evidence admissible because “‘it may be rejected if its probative value is outweighed by the danger that its admission would . . . unfairly surprise a party[] or create substantial danger of undue prejudice to one of the parties'” … .

Relying on the People’s pre-trial representation, defense counsel shaped his trial strategy — from voir dire to his opening statement — based on his founded belief that complainant did not disclose the alleged rapes until months after they occurred. Complainant’s testimony that she disclosed her accusations against defendant — even partially — the same night as the alleged assaults, took defendant by surprise because it was inconsistent with the People’s earlier position and with complainant’s grand jury testimony. Despite the People’s admission that they “expected” complainant to testify in such a manner, the prosecutor inexplicably failed to convey this information to defense counsel. As a result, the surprise testimony eviscerated counsel’s credibility with the jury and irreparably undermined his trial strategy. People v Shaulov, 2015 NY Slip Op 02676, CtApp 3-31-15

 

 

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Even If Information About Prosecution Witness’ Recent Drug Sales Had Been Withheld in Violation of Brady/Giglio, the Withheld Information Was Not “Material” In That It Would Not Have Affected the Outcome

The First Department, in a full-fledged opinion by Justice Richter, determined that there was insufficient evidence that a Brady/Giglio violation had occurred and that, assuming there was a violation, it would not have affected the verdict.  The underlying question was whether the prosecution was aware a cooperating witnesses had lied on the stand when he testified he no longer sold drugs:

…[D]efendant’s principal claim is that the People violated their obligations under Brady v Maryland (373 US 83 [1963]) and its progeny. It is well established that a defendant has the right, under both the State and Federal Constitutions, to discover favorable evidence in the People’s possession that is material to guilt or punishment … . Furthermore, the People’s Brady obligations apply to both exculpatory and impeachment evidence (see Giglio v United States, 405 US 150, 154 [1972]). Such evidence, however, “is subject to Brady disclosure only if it is within the prosecution’s custody, possession, or control” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . * * *

It is axiomatic that there can be no Brady violation unless the suppressed information is “material” … . Where, as here, a defendant has made a specific request for the undisclosed information, “the materiality element is established provided there exists a reasonable possibility that it would have changed the result of the proceedings” … . Under this standard, even if the information about [the witness’] recent drug sales had been disclosed before the end of trial, there is no reasonable possibility that the verdict would have been different. People v Stilley, 2015 NY Slip Op 02715, First Dept 3-31-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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Prosecutorial Misconduct Warranted a New Trial

The Fourth Department reversed defendant’s conviction and ordered a new trial because of the prosecutor’s misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

The prosecutor began her summation by improperly characterizing the People’s case as “the truth” and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant … .

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant … . The prosecutor asked the jury “to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I’m bugging, but I tried to catch him, that’s why I left,’ are examples of the ring of truth.” Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: “I submit to you the (complainant’s statements) are truthful.” The prosecutor also bolstered the complainant’s credibility by making herself an unsworn witness in the case … . In addressing inconsistencies between the complainant’s testimony and his earlier statement to the police, the prosecutor argued that the complainant made only “[o]ne inconsistent statement, from talking to the police and talking to me” (emphasis added). The prosecutor’s remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record … .

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant’s “bravery” in calling the police and testifying against defendant … . The prosecutor told the jurors that it was “not an easy decision” for complainant to call the police, and asked them to “hang [their] hat on . . . [the complainant]’s bravery by coming in front of you.” The prosecutor argued that the neighborhood where the crime occurred and where the complainant’s family worked “is an anti-police atmosphere.” After defense counsel’s objection to that comment was sustained, the prosecutor protested that “it was a statement in evidence” when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not “to go into what this area is like.” The prosecutor nonetheless continued her summation by asking the jurors to “[u]se [their] common sense to think about whether or not this happened and why there’s no other witnesses” (emphasis added). The prosecutor argued that the complainant “is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day.” She continued: “So please tell [the complainant] he did the right thing by calling 911 and telling them one man’s word is enough. Tell them that he is brave to report this.” The prosecutor ended her summation by urging the jury to “tell [the complainant] that his truthfulness is enough to convict the defendant” by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

 

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Prosecutorial Misconduct Deprived Defendant of a Fair Trial

The Fourth Department, exercising its “interest of justice” jurisdiction, over a dissent, determined the misconduct of the prosecutor warranted a new trial.  The prosecutor improperly questioned defendant about his homosexuality and the criminal records of persons with whom defendant resided, The prosecutor further improperly introduced evidence of defendant's propensity to commit a crime and elicited bolstering testimony from a police officer about the Child Sexual Abuse Accommodation Syndrome without qualifying the officer as an expert in that area. With respect to the police officer's testimony, the court wrote:

…[T]he prosecutor improperly elicited testimony from a police investigator that he had received training establishing that underaged victims of sexual crimes frequently disclosed the crime in minimal detail at first, and provided more thorough and intimate descriptions of the event later. That testimony dovetailed with the People's position concerning the way in which the victim revealed this incident … . Thus, we conclude that the investigator's testimony “was the precise equivalent of affirming the credibility of the People's witness through the vehicle of an opinion that [sexual abuse is frequently committed] as the victim had related. It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not. The jurors were fully capable of using their ordinary experience to test the credibility of the victim-witness; and the receipt of the [investigator]'s testimony in this regard was improper and indeed constituted usurpation of the function of the jury . . . Where, as here, the sole reason for questioning the expert' witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant's, the expert's' testimony is equivalent to an opinion that the defendant is guilty” (People v Ciaccio, 47 NY2d 431, 439), and the prosecutor improperly elicited that testimony.

Moreover, by eliciting that testimony, the prosecutor improperly introduced expert testimony regarding the Child Sexual Abuse Accommodation Syndrome. Although such testimony is admissible in certain situations …, here it was elicited from a police investigator under the guise that it was part of the investigator's training. The prosecutor failed to lay a foundation establishing that the investigator was qualified to provide such testimony …. Furthermore, the evidence does not establish that the investigator had “extensive training and experience [that] rendered [him] qualified to provide such [testimony]” … . People v Scheidelman, 2015 NY Slip Op 01111, 4th Dept 2-6-15


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Judge’s Failure to Question Prospective Juror Re: the Juror’s Possible Bias In Favor of Police Officers Was Reversible Error/Prosecutor’s Suggestion in Summation that Simply Being a Defendant Is Evidence of Guilt Was Grounds for Reversal As Well

The First Department reversed defendant's conviction because the trial judge did not further question a juror who indicated bias in favor of police officers.  [The judge, in denying defense counsel's “for cause” challenge, erroneously indicated it was defense counsel's role to question the juror about the juror's ability to be fair.]  In addition, the prosecutor's suggestion in summation that simply being a defendant is evidence of guilt was grounds for reversal:

Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” Upon making this type of challenge, “a juror who has revealed doubt, because of prior knowledge or opinion, about [his] ability to serve impartially must be excused unless the juror states unequivocally on the record that [he] can be fair” … . The CPL “does not require any particular expurgatory oath or talismanic words” …, but challenged jurors “must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence” … . Those who have given “less-than-unequivocal assurances of impartiality . . . must be excused” and “[i]f there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … .

In this case, the prospective juror gave a response that was uncertain at best, stating that he did not know and “couldn't say” whether he would be able to judge an officer's credibility as opposed to a civilian witness. * * * Given this ambiguity … it was incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court's instructions on the law … . …

…[T]he prosecutor's summation remarks regarding reasonable doubt also constituted reversible error, as these remarks suggested that the jury should convict based on facts extraneous to the trial. Specifically, the comments “linked [the defendant] to every defendant who turned out to be guilty and was sentenced to imprisonment,” thus inviting the jury to consider his status as a defendant as “evidence tending to prove his guilt” … . Moreover, the prosecutor's comments tended to minimize the jury's sense of responsibility for the verdict. These remarks exceed the bounds of permissible advocacy. People v Jones, 2015 NY Slip Op 00797, 1st Dept 2-3-15


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Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)

The Second department noted that the prosecutor’s comment implying that communicating with an attorney manifests a consciousness of guilt was error:

In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People’s theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: “[I]f you didn’t do anything and you don’t know that detectives are looking for you in respect to a shooting, why did you get an attorney?” The defendant correctly contends that this comment was improper, since the defendant’s retention of an attorney was not probative of her consciousness of guilt … . Nevertheless, contrary to the defendant’s contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal … . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15

 

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