        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

188
KA 10-02154
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRELL J. GRIFFIN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Joan S.
Kohout, A.J.), rendered August 16, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and as a matter of discretion in the
interest of justice and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of robbery in the first degree (Penal Law § 160.15 [4]),
defendant contends that he was deprived of a fair trial by
prosecutorial misconduct. We agree. Although defendant failed to
preserve his contention for our review with respect to certain alleged
instances of prosecutorial misconduct (see CPL 470.05 [2]), we
nevertheless exercise our power to review defendant’s contention with
respect to those instances as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [a]). We conclude that defendant is
entitled to a new trial.

     The prosecutor began her summation by improperly characterizing
the People’s case as “the truth” and denigrating the defense as a
diversion (see People v Miller, 104 AD3d 1223, 1223-1224, lv denied 21
NY3d 1017; People v Benedetto, 294 AD2d 958, 959-960; see also People
v Mehmood, 112 AD3d 850, 853). 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 (see People v Casanova, 119 AD3d 976, 977-978; People v
Pagan, 2 AD3d 879, 880; Benedetto, 294 AD2d at 959-960; People v
Williams, 112 AD2d 177, 179).

     Perhaps most egregiously in this one-witness case where
credibility was paramount, the prosecutor repeatedly and improperly
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                                                         KA 10-02154

vouched for the veracity of the complainant (see People v Moye, 12
NY3d 743, 744; People v Walker, 119 AD3d 1402, 1404; People v Forbes,
111 AD3d 1154, 1158). 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 (see People v Fisher, 18 NY3d 964, 966; Moye, 12
NY3d at 744; Forbes, 111 AD3d at 1158; People v Spence, 92 AD3d 905,
905-906). 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 (see
Fisher, 18 NY3d at 966; People v Ashwal, 39 NY2d 105, 109-110).

     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 (see People v Smith, 288 AD2d 496,
497; People v Andre, 185 AD2d 276, 278; see generally People v
Ballerstein, 52 AD3d 1192, 1194). 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.

     Although “[r]eversal is an ill-suited remedy for prosecutorial
misconduct” (People v Galloway, 54 NY2d 396, 401), it 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
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                                                         KA 10-02154

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” (People v Mott, 94 AD2d 415, 419). Here, misconduct
permeated the trial and was at times severe. In addition to the
misconduct on summation, the prosecutor asked improper questions and
attempted to elicit irrelevant and inflammatory statements during her
direct examination of the People’s witnesses (see generally People v
Morrice, 61 AD3d 1390, 1391). The prosecutor also called a police
witness for the sole purpose of testifying about defendant’s arrest,
for which she was admonished by the court. Although the court
sustained many of defense counsel’s objections, “other improper
remarks passed without objection or admonishment, and few curative
instructions were given” (Casanova, 119 AD3d at 979). We therefore
“cannot say that any resulting prejudice was alleviated” (id.; see
People v Clark, 195 AD2d 988, 991). In any event, even where the
trial court repeatedly sustains a defendant’s objections and instructs
the jury to disregard certain remarks by the prosecutor, “[a]fter a
certain point, . . . the cumulative effect of a prosecutor’s improper
comments . . . may overwhelm a defendant’s right to a fair trial”
(People v Riback, 13 NY3d 416, 423).

     Finally, inasmuch as the evidence in this case was far from
overwhelming, we cannot conclude that “the same result ‘would
undoubtedly have been reached’ without the misconduct” (Clark, 195
AD2d at 991; see Fisher, 18 NY3d at 966; People v Cotton, 242 AD2d
638, 639).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
