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You are here: Home1 / PROSECUTORIAL MISCONDUCT

Tag Archive for: PROSECUTORIAL MISCONDUCT

Attorneys, Criminal Law

Leading Questions and Elicitation of Hearsay in Grand Jury Proceedings Did Not Constitute Prosecutorial Misconduct

The Third Department reversed County Court and determined leading questions and elicitation of hearsay in the grand jury proceedings did not constitute prosecutorial misconduct:

“Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury” … .  Contrary to County Court’s finding, the record as a whole does not reveal a “pervasive mishandling” of the manner in which this case was presented to the grand jury.  To the extent that the prosecutor asked leading questions or elicited hearsay testimony from the various witnesses, we note that “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  [Rather], the submission of some inadmissible evidence [typically] will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .  Inasmuch as we are satisfied – based upon our review of the grand jury minutes – that there otherwise is legally sufficient (and admissible) evidence to sustain count 1 of the indictment, the isolated instances of hearsay testimony, which were accompanied by appropriate limiting instructions, do not warrant dismissal thereof … .  We similarly are persuaded that the prosecutor’s limited use of leading questions did not impair the integrity of the grand jury proceeding… . People v Miller, 105721, 3rd Dept 10-17-13

 

October 17, 2013
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2013-10-17 19:20:592020-12-05 18:40:52Leading Questions and Elicitation of Hearsay in Grand Jury Proceedings Did Not Constitute Prosecutorial Misconduct
Attorneys, Criminal Law

Indictment Should Not Have Been Dismissed Based on Prosecutorial Misconduct

In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained:

“ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” … .  As the Court of Appeals has stated, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .

Here, the prosecutor was required to establish that the four-year-old victim could provide unsworn testimony, but failed to do so… . The prosecutor also violated the unsworn witness rule during an attempt to persuade the child to testify about the incident … .  Nevertheless, we conclude that the prosecutor did not thereby engage in conduct that was fraudulent in nature, nor was the prosecutor’s conduct so egregious as to impair the integrity of the grand jury proceedings … .  We further conclude that the remaining evidence is legally sufficient to sustain the indictment.  People v Elioff, 1002, 4th Dept 10-4-13

 

October 4, 2013
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2013-10-04 20:20:102020-12-05 19:54:22Indictment Should Not Have Been Dismissed Based on Prosecutorial Misconduct
Criminal Law, Evidence

Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police; Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)

The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:

County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13

 

June 19, 2013
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2013-06-19 10:34:042020-12-04 17:41:09Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police; Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)
Attorneys, Criminal Law

Improper to Characterize Trial as “Search for Truth”

The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal).  People v Ward, 758, 4th Dept, 6-14-13

 

June 14, 2013
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2013-06-14 13:41:062020-12-04 17:59:58Improper to Characterize Trial as “Search for Truth”
Attorneys, Criminal Law, Evidence

Conviction Reversed Because of Improper Cross-Examination by Prosecutor; Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:

The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … .People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

PROSECUTORIAL MISCONDUCT

April 23, 2013
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