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

1419
KA 09-02477
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL D. JONES, DEFENDANT-APPELLANT.


CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Robert B. Wiggins, A.J.), rendered September 30, 2009. The judgment
convicted defendant, upon a jury verdict, of attempted rape in the
first degree, attempted criminal sexual act in the first degree and
assault in the second 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 attempted rape in the first degree (Penal Law §§ 110.00,
130.35 [1]), attempted criminal sexual act in the first degree (§§
110.00, 130.50 [1]) and assault in the second degree (§ 120.05 [6]),
defendant contends that reversal is required based on pervasive
prosecutorial misconduct on summation. We agree.

     We note at the outset that, although defendant failed to preserve
his contention for our review with respect to all but one alleged
instance of prosecutorial misconduct (see CPL 470.05 [2]), we exercise
our power to review defendant’s contention with respect to the
remaining instances as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]; People v Griffin, 125 AD3d 1509,
1510). On summation, the prosecutor repeatedly invoked a “safe
streets” argument (see People v Tolliver, 267 AD2d 1007, 1007, lv
denied 94 NY2d 908), 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; People v
Spann, 82 AD3d 1013, 1015; People v Brown, 26 AD3d 392, 393);
improperly characterized the defense as being based on a “big
                                 -2-                          1419
                                                         KA 09-02477

conspiracy” against defendant by the prosecutor and the People’s
witnesses (see People v Cowan, 111 AD2d 343, 345, lv denied 65 NY2d
978); and denigrated the fact that defendant had elected to invoke his
constitutional right to a trial (see People v Rivera, 116 AD2d 371,
373). 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).

     We recognize, of course, that “[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 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; see Griffin, 125 AD3d at
1511). In view of the substantial prejudice caused by the
prosecutor’s misconduct in this case, including the fact that the
evidence of guilt is less than overwhelming (see Griffin, 125 AD3d at
1512), we agree with defendant that reversal is required.

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




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
