Prosecutorial Misconduct - New Trial

This appeal comes from the Monroe County Supreme Court – a jury convicted the defendant of attempted rape and attempted criminal sexual act in the first and second degree. The judgement is unanimously reversed on the law and “as a matter of discretion in the interest of justice.” A new trial is granted.“[A]lthough defendant failed to preserve his contention for our review with respect to all but one alleged instance of prosecutorial misconduct” The court exercises its discretion in reviewing the matter and exercises its discretion (in the interests of justice) in fashioning a remedy. The Court recited what the prosecutor did that afforded the Defendant a new trial:

On summation, the prosecutor repeatedly invoked a “safe streets” argument (see People v Tolliver, 267 AD2d 1007, 1007 [1999], lv denied 94 NY2d 908 [2000]), even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim (see People v Morgan, 111 AD3d 1254, 1255 [2013]; People v Spann, 82 AD3d 1013, 1015 [2011]; People v Brown, 26 AD3d 392, 393 [2006]); improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses (see People v Cowan, 111 AD2d 343, 345 [1985], lv denied 65 NY2d 978 [1985]); and denigrated the fact that defendant had elected to invoke his constitutional right to a trial (see People v Rivera, 116 AD2d 371, 373 [1986]). Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case (People v Wright, 25 NY3d 769, 783 [2015]).While the Court cites longstanding law for the premise that “[r]eversal is an ill-suited remedy for prosecutorial misconduct” (People v Galloway, 54 NY2d 396, 401 [1981]), the Court still finds that “[i]t is nevertheless mandated when the conduct of the prosecutor ‘has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law.

In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached.’ ” Id. (citing People v Mott, 94 AD2d 415, 419 [1983]; see Griffin, 125 AD3d at 1511).Lawyers, defendants and prospective clients should note the importance of review at the appellate level. Albeit found guilty by a jury, the Fourth Department looks at the record as a whole and exercised its discretion in granting a new trial based on the conduct of the prosecutor, upsetting the verdict and giving the defendant another chance at an acquittal.

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