This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 28
The People &c.,
            Respondent,
        v.
Leonard Williams,
            Appellant.




          A. Alexander Donn, for appellant.
          Jean M. Joyce, for respondent.




DiFIORE, Chief Judge:
          Defendant maintains that he was deprived of a fair
trial by the People's PowerPoint presentation, particularly
insofar as it displayed slides that contained annotated images of
trial exhibits.   We conclude that, here, where the trial court,
in the exercise of its discretion, took prompt corrective action


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to ensure that the jury was not being misled and gave strong
instructions concerning summation, defendant was not deprived of
a fair trial.
            Shortly after midnight on December 20, 2009, several
men broke into the victim's apartment.    The victim, who knew
defendant from the neighborhood, recognized defendant as one of
the intruders who attacked him.    Defendant shot the victim, cut
him with a knife and poured bleach over his head.      The victim
testified at trial that he had been on the telephone with his
brother when the men burst into his apartment.
            At trial, the People introduced surveillance footage of
the street and sidewalk where the victim lived from cameras
located on the building neighboring the victim's apartment, as
well as still photographs from that footage.    The exhibits were
authenticated by the custodian of the cameras on the neighboring
building.    It was snowing heavily at the time of the offense and
the video depicts six individuals in hooded clothing walking
along the sidewalk through the snow.    At one point, the video
shows an SUV driving down the block.    After the SUV proceeded
through the traffic light at the corner, the six individuals can
be seen running into what appears to be the victim's building.       A
short time later, the camera shows the individuals exiting the
building and running away.
            The victim's brother testified at trial.    During his
testimony, the prosecutor displayed still photos of the


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surveillance video -- in particular, of the SUV that drove down
the block near the time of the crime.   The victim's brother
agreed that he had been driving down the same block on the night
of the blizzard around the time of the offense and that he had
been speaking with the victim on the phone when he was attacked.
The victim's brother further agreed that the truck he drove at
that time "looked like" the one in the still shot, but testified
that he was unable to definitively identify the vehicle as his.
          The victim's brother also testified that, when he was
driving down the block, he saw a few people wearing hooded
clothing walking on the sidewalk.   One of the individuals was
short in stature and the victim's brother testified that he
thought he recognized that person as defendant -- "[t]he only
short person I know."   Indeed, he greeted the man, saying "what
up," and the man responded with a wave.   The victim's brother
admitted that he did not see defendant's face, because it was
dark outside and there was a blizzard going on, but testified
that he "thought it was him."
          The trial court, immediately before closing arguments,
gave the jury detailed preliminary instructions, telling them
that they alone were the finders of fact, that what the lawyers
say in summation was "simply argument submitted for your
consideration," that nothing the lawyers say in summation was
evidence and that the jury's recollection of the evidence
controlled, regardless of what the attorneys said.


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          In summation, the prosecutor displayed a PowerPoint
presentation containing slides of images of the trial exhibits,
some of which had been annotated through the PowerPoint program
with text, circles or arrows.   Significantly, the prosecutor
displayed slides depicting the still photographs from the
surveillance video that he had showed the victim's brother, which
had been annotated with captions such as, "[the victim's
brother's t]ruck" and "[the victim's brother] sees Defendant,"
despite the witness's inability to make those definitive
identifications in his trial testimony.    Defense counsel raised
objections at various points, several of which were sustained.
In addition, the trial court voiced its own concerns, at one
point telling the jury to disregard the prosecutor's annotations
to the images of the trial exhibits.    The court ultimately
curtailed the PowerPoint presentation because of those
annotations, stating that it was "not allowing any more . . .
superimposed words."
          Following summations, defense counsel moved for a
mistrial, arguing that there had been improper comment in several
areas.   Although the court indicated that it was "sympathetic" to
certain of defendant's arguments, it denied the mistrial.      When
the court asked whether defendant "want[ed] anything short of a
mistrial," counsel declined.    Defendant was convicted of burglary
in the first degree, assault in the second degree and criminal
possession of a weapon in the second degree.    The jury acquitted


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him of robbery in the first, second and third degrees.
           The Appellate Division affirmed, holding that, to the
extent defendant's arguments were preserved, he was not deprived
of a fair trial by either the PowerPoint presentation or the
prosecutor's summation (123 AD3d 1152 [2d Dept 2014]).     The Court
also rejected defendant's ineffective assistance of counsel
claim.   A Judge of this Court granted defendant leave to appeal
(25 NY3d 1173 [2015]), and we now affirm.
           It is well-settled that attorneys are entitled to broad
latitude in commenting on pertinent matters of fact in summation,
so long as they limit themselves to relevant matters within the
four corners of the evidence (see People v Ashwal, 39 NY2d 105,
109 [1976]).   "[T]he District Attorney may not refer to matters
not in evidence or call upon the jury to draw conclusions which
are not fairly inferrable from the evidence.   Above all, he [or
she] should not seek to lead the jury away from the issues by
drawing irrelevant and inflammatory conclusions which have a
decided tendency to prejudice the jury against the defendant"
(Ashwal, 39 NY2d at 109-110 [citations omitted]).   When
determining whether improper statements deprived a defendant of a
fair trial, we have considered it to be of "vital significance
whether the trial court . . . 'gave standing to the statement of
the District Attorney as legitimate argument'" or whether the
court took prompt corrective action, such as issuing a curative
instruction (People v Broady, 5 NY2d 500, 516 [1959] [citation


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omitted]).
          There is no inherent problem with the use of a
PowerPoint presentation as a visual aid in connection with
closing arguments.   Indeed, it can be an effective tool.   But,
the long-standing rules governing the bounds of proper conduct in
summation apply equally to a PowerPoint presentation.   In other
words, if it would be improper to make a particular statement, it
would likewise be improper to display it (see People v Anderson,
__ NY3d __ [decided today]).   If counsel is going to superimpose
commentary to images of trial exhibits, the annotations must,
without question, accurately represent the trial evidence (see
e.g. People v Santiago, 22 NY3d 740, 751 [2014]).   Moreover, any
type of blatant appeal to the jury's emotions or egregious
proclamation of a defendant's guilt would plainly be unacceptable
(see e.g. State v Walker, 182 Wash 2d 463, 341 P3d 976 [2015]).
          Here, defendant argues that he was deprived of a fair
trial by the annotation of images of the trial exhibits to imply
that the victim's brother, in his testimony, had positively
identified either his truck or defendant from the surveillance
video because this misrepresented the witness's testimony.
Significantly, the trial court was very attuned to the annotated
slides and, in the exercise of its discretion, ultimately stopped
the slideshow and instructed the jury to disregard the slides
(see People v Galloway, 54 NY2d 396, 399 [1981]).   To the extent
any slides may have misrepresented the trial evidence, the trial


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court instructed the jury on more than one occasion that the
attorneys' arguments were not evidence and that the jury was the
sole judge of the facts.   Defense counsel also rejected the
court's offer of any less drastic relief after the denial of the
mistrial motion.   Thus, under these circumstances, defendant was
not deprived of a fair trial.
           Notably, the actual trial exhibits remained pristine
for the jury's examination.    In any particular case, where there
is a concern that it will not be clear to the jury that the
annotated PowerPoint slides are not in evidence, or a substitute
for the actual evidence, a specific jury instruction will serve
to emphasize that such representations are merely argument by
counsel.
           Defendant raises several additional arguments directed
to aspects of the prosecutor's summation.   Some of them are
preserved and others are raised in the context of an ineffective
assistance of counsel claim.    These arguments are without merit.
As previously stated, the court's prompt corrective action cured
any potential prejudice.   In addition, viewing trial counsel's
performance in its totality, meaningful representation was
provided (see People v Speaks, 28 NY3d 990, 992 [2015]).   The
remarks at issue here were not "so egregious that counsel's
failure to object render[ed] his overall representation
constitutionally defective" (People v Wragg, 26 NY3d 403, 411
[2015]).


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            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera,
Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

Decided April 4, 2017




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