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

942
KA 11-01834
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD MORGAN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 20, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
grand larceny in the third degree, criminal possession of a forged
instrument in the second degree and criminal possession of a
controlled substance in the seventh 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, a new trial is granted on counts one and three of
the indictment, and counts two and four of the indictment are
dismissed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]), grand larceny in the third degree (former § 155.35),
criminal possession of a forged instrument in the second degree (§
170.25), and criminal possession of a controlled substance in the
seventh degree (§ 220.03). Defendant was convicted upon a retrial
after we reversed the first judgment of conviction based on a Batson
violation (People v Morgan, 75 AD3d 1050, 1051-1053, lv denied 15 NY3d
894). Although on the prior appeal we did not need to address on the
merits defendant’s contention that he was deprived of a fair trial by
prosecutorial misconduct inasmuch as we granted a new trial on Batson
grounds, we nevertheless “note[d] our strong disapproval of the
misconduct of the prosecutor on summation in improperly shifting the
burden of proof onto defendant and in improperly vouching for the
credibility of the People’s witnesses” (id. at 1053). We noted that,
“[a]mong other objectionable remarks, the prosecutor stated on
summation that ‘[t]he only way that you can find the defendant not
guilty of burglary is if you believe that he falsely admitted to a
crime that he didn’t commit[,]’ ” and that, “ ‘ to believe what
                                 -2-                           942
                                                         KA 11-01834

[defendant] want[s] you to believe, you have to conclude that [two
police detectives] are liars. Two police officers with forty years of
experience between them . . . They’re going to come in here and
perjure themselves on the stand, and risk prosecution themselves, for
what? For this?’ ” (id. at 1053-1054).

     On this appeal, defendant again contends that reversal is
warranted based upon prosecutorial misconduct on summation, and we
agree. Despite our prior admonition on defendant’s first appeal, the
prosecutor on retrial repeated some of the improper comments from the
first summation and made additional comments that we conclude are
improper. The prosecutor improperly denigrated the defense and
defense counsel, repeatedly characterizing the defense as “noise,”
“nonsense” and a “distraction[],” and arguing that defense counsel was
fabricating facts and attempting to mislead the jury (see People v
Miller, 104 AD3d 1223, 1223-1224, lv denied 21 NY3d 1017; People v
Lopez, 96 AD3d 1621, 1622, lv denied 19 NY3d 998; People v Spann, 82
AD3d 1013, 1015). In one of the more troubling passages in her
summation, the prosecutor stated, “You are here for the People of the
State of New York versus [defendant] . . . It is not about who isn’t
sitting at the defense table, it is about who is. Are you buying it?
Because that’s what they’re selling. Theories disguised as arguments
and posturing as evidence. And I’m not suggesting the defendant has
the burden of proving anything because the burden rests with the
People, but by the same token, it doesn’t give counsel license to make
stuff up and pretend that it’s evidence. They all have something in
common. These theories, they’re noise, they’re nonsense. They want
you to be distracted. Do not be distracted.”

     In addition, the prosecutor misstated the evidence and the law
(see People v Riback, 13 NY3d 416, 423; Spann, 82 AD3d at 1015-1016;
People v Hetherington, 229 AD2d 916, 917, lv denied 88 NY2d 1021),
made an inappropriate “guilt by association” argument (see People v
Parker, 178 AD2d 665, 666), and improperly characterized the case as
“about finding the truth and it is as simple as that” (see People v
Ward, 107 AD3d 1605, 1606-1607; People v Benedetto, 294 AD2d 958, 959;
People v Smith, 184 AD2d 326, 326, lv denied 80 NY2d 910). Perhaps
the prosecutor’s most egregious misconduct occurred when she made
herself an unsworn witness and injected the integrity of the District
Attorney’s office into the case (see People v Moye, 12 NY3d 743, 744;
People v Clark, 195 AD2d 988, 990). With respect to a chief
prosecution witness, who did not testify at the first trial and who
turned herself in on a warrant the day prior to her testimony, the
prosecutor stated: “When she arrived at our offices, she was escorted
over to Buffalo City Court because she had a warrant, because that’s
what you have to do, and she was released on her own recognizance by
the judge. And let me be very clear here when we talk about promises
to witnesses or benefits that they received. Let me be very clear.
Neither myself, nor [the other prosecuting attorney], nor anyone from
our office, ever promised her anything in exchange for her testimony”
(emphasis added). The Court of Appeals condemned similar comments by
the prosecutor in People v Carter (40 NY2d 933, 934-935).
                                 -3-                          942
                                                        KA 11-01834

     In light of the foregoing, we conclude that reversal is warranted
based on the pervasive and at times egregious misconduct on summation,
particularly in light of our previous admonition to the People in this
matter (see Spann, 82 AD3d at 1015-1016; People v Wlasiuk, 32 AD3d
674, 681, lv dismissed 7 NY3d 871). In short, as we said more than 15
years ago, “[i]t would seem, by now, unnecessary to emphasize again
that the duty of the prosecutor is to honor established legal
principles, not to secure a conviction by any and all means” (People v
Paul, 229 AD2d 932, 933).

     We further agree with defendant that the evidence is legally
insufficient to support the conviction of grand larceny in the third
degree because there is insufficient evidence that the value of the
stolen property exceeded $3,000 (see Penal Law former § 155.35).
Although defendant failed to preserve that contention for our review
(see People v Snyder, 100 AD3d 1367, 1367-1368, lv denied 21 NY3d
1010), we nevertheless exercise our power to address it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). The
value of stolen property is “the market value of the property at the
time and place of the crime, or if such cannot be satisfactorily
ascertained, the cost of replacement of the property within a
reasonable time after the crime” (Penal Law § 155.20 [1]). It is well
established that “a victim must provide a basis of knowledge for his
[or her] statement of value before it can be accepted as legally
sufficient evidence of such value” (People v Lopez, 79 NY2d 402, 404),
and that “[c]onclusory statements and rough estimates of value are not
sufficient” (People v Loomis, 56 AD3d 1046, 1047).

     Here, the stolen property consisted of a PlayStation video game
console, video games, DVDs, a laptop, an external hard drive, and
other miscellaneous computer equipment. The victim testified that the
value of the laptop was “about $2,000” and that he “had it for less
than a year” before the burglary, but he did not testify as to the
purchase price, the condition of the laptop, or the cost to replace it
(see People v Geroyianis, 96 AD3d 1641, 1643-1644, lv denied 19 NY3d
996, reconsideration denied 19 NY3d 1102; People v Vandenburg, 254
AD2d 532, 534, lv denied 93 NY2d 858). As for the PlayStation, the
victim testified that it cost $150 in 2005. Although a “victim is
competent to supply evidence of original cost” (People v Stein, 172
AD2d 1060, 1060, lv denied 78 NY2d 975), “evidence of the original
purchase price, without more, will not satisfy the People’s burden”
(People v Gonzalez, 221 AD2d 203, 204). With respect to the remaining
items of stolen property, the victim “provided only rough estimates of
value . . . without setting forth any basis for his estimates . . . ,
and thus the evidence also is legally insufficient to establish the
value of those remaining items” (Geroyianis, 96 AD3d at 1645 [internal
quotation marks omitted]; see People v Sutherland, 102 AD3d 897, 898-
899). On this record, we cannot conclude that “ ‘the jury ha[d] a
reasonable basis for inferring, rather than speculating, that the
value of the property exceeded the statutory threshold’ ” of $3,000
(People v Brinks, 78 AD3d 1483, 1484, lv denied 16 NY3d 742,
reconsideration denied 16 NY3d 828; see Vandenburg, 254 AD2d at 534).
We therefore dismiss count two of the indictment.
                                 -4-                           942
                                                         KA 11-01834

     We likewise agree with defendant that the evidence is legally
insufficient to support his conviction of criminal possession of a
controlled substance in the seventh degree, as charged in the fourth
count of the indictment. The indictment alleged that “on or about the
2nd day of September, 2005, [defendant] knowingly and unlawfully
possessed a controlled substance, to wit: cocaine” (emphasis added).
The evidence that defendant possessed a controlled substance on
September 2, 2005 consisted solely of the testimony of a witness and
defendant’s statement that they smoked crack cocaine together on that
date, but at different times. As the People correctly concede, such
evidence is legally insufficient to support a conviction of criminal
possession of a controlled substance (see generally People v Martin,
81 AD3d 1178, 1179-1180, lv denied 17 NY3d 819, reconsideration denied
17 NY3d 904). Although the evidence is legally sufficient to
establish that defendant possessed a controlled substance on September
27, 2005, the date of his arrest, the indictment did not charge
defendant with drug possession on that date and, contrary to the
People’s contention, the discrepancy cannot be characterized as a mere
“variance” in the date of the offense (see People v La Marca, 3 NY2d
452, 458-459, remittitur amended 3 NY2d 942, cert denied 355 US 920,
rearg denied 4 NY2d 960). We therefore dismiss count four of the
indictment (see generally People v Oberlander, 60 AD3d 1288, 1289).

     Contrary to the further contention of defendant, however, we
conclude that the evidence is legally sufficient to support the
conviction of burglary in the second degree and criminal possession of
a forged instrument in the second degree and, viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict with
respect to those counts is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     In light of our determination, we do not address defendant’s
remaining contentions.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
