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

1394
KA 11-00289
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC PORTER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), 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
(Daniel J. Doyle, J.), rendered January 31, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third 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, that part of the omnibus motion seeking to
suppress defendant’s statements is granted, and a new trial is granted
on counts one and two of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (Penal Law § 265.02 [1]). Defendant contends that he
was unlawfully detained by the police during a traffic stop of the
vehicle in which he was a passenger, and that Supreme Court erred in
refusing to suppress his statements to the police as the fruit of that
unlawful detention. We agree.

     The vehicle in which defendant was a passenger was stopped by the
police for having a suspended registration. After the driver of the
vehicle was arrested, but before the police could conduct an inventory
search of the vehicle in preparation for impounding the vehicle,
defendant asked whether he could leave the scene. The police told
defendant that he must remain present with them until the inventory
search was complete. After the police began the inventory search,
defendant twice stated that there was a rifle in the vehicle. One of
the officers discovered the rifle wrapped tightly in a pink blanket on
the floor of the front passenger seat, and he later testified at the
suppression hearing that he had noticed the blanket “directly against
                                 -2-                          1394
                                                         KA 11-00289

[defendant’s] leg” when he first approached the vehicle. At trial,
the only evidence presented by the People linking defendant to the
rifle consisted of defendant’s two statements to the police that there
was a rifle in the vehicle.

     Although we conclude that the initial traffic stop was valid
based on the vehicle’s suspended registration, we agree with defendant
that the justification for that stop ended once the driver had been
arrested for that offense (see People v Banks, 85 NY2d 558, 562, cert
denied 516 US 868; cf. People v Rainey, 49 AD3d 1337, 1339, lv denied
10 NY3d 963). Contrary to the People’s contention, prolonging the
detention of defendant was not justified by concern for officer
safety. At the suppression hearing, the officers failed to identify
any specific basis for a belief that defendant posed a danger.
Rather, they testified that defendant was cooperative during the
initial traffic stop, and the officers did not testify that they
believed that defendant, in departing, would have threatened their
safety (see generally People v Torres, 74 NY2d 224, 230-231). Indeed,
the People did not present any evidence of “articulable facts” from
the encounter to establish reasonable suspicion that defendant posed
any danger to the officers (People v Harrison, 57 NY2d 470, 476; see
generally People v May, 52 AD3d 147, 151). We therefore agree with
defendant that the court erred in denying that part of his omnibus
motion seeking to suppress his statements.

     We further conclude that the court’s error is not harmless
inasmuch as there is a “reasonable possibility that the error might
have contributed to defendant’s conviction” (People v Crimmins, 36
NY2d 230, 237; see People v Huntsman, 96 AD3d 1390, 1392; see
generally People v Douglas, 4 NY3d 777, 779). Indeed, as noted above,
defendant’s statements to the police were the only evidence at trial
establishing the element of knowledge for the possessory crimes
against him (see People v Brown, 21 NY3d 739, 751). We therefore
reverse the judgment, grant that part of defendant’s omnibus motion
seeking to suppress his statements, and grant a new trial on counts
one and two of the indictment.

     We further agree with defendant that various instances of
prosecutorial misconduct deprived him of his right to a fair trial and
that reversal is required on that ground as well. Although defendant
failed to preserve his challenges for our review, we exercise our
power to review them as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]; People v Scheidelman, 125 AD3d 1426,
1427). During cross-examination, the prosecutor questioned the driver
of the vehicle regarding an out-of-court conversation between them,
asking her whether she came to his office and admitted that the
defendant “[tried] to get [her] to come and take the blame for the
gun.” After the witness denied for the second time that such a
conversation had taken place, the prosecutor rhetorically asked,
“[b]ut you were the one who was convicted of Scheme to Defraud,
correct?” By challenging the witness with respect to the out-of-court
conversation, the prosecutor both improperly interjected his personal
opinion as to the truthfulness of the testimony and suggested to the
jury that his own, unsworn version of events should be credited (see
                                 -3-                          1394
                                                         KA 11-00289

People v Bailey, 58 NY2d 272, 277; People v Ramashwar, 299 AD2d 496,
497).

     In addition, instances of prosecutorial misconduct on summation
deprived defendant of his right to a fair trial. The prosecutor
improperly denigrated defendant’s case by referring to certain
contentions as “[a]ll this nonsense,” made repeated non sequiturs
distinguishing the case from the John F. Kennedy assassination, and
asserted that the defense was “twisting things” and employing “tricks”
(see People v Morgan, 111 AD3d 1254, 1255). The prosecutor compounded
those statements by consistently commenting on witness credibility,
calling the defense witnesses “a cast of characters,” “people com[ing]
out of the woodwork,” and specifically referring to one witness as “a
piece of work.” The prosecutor accused the defense witnesses of
lying, and also argued that one could not believe a certain witness
who had a lawyer advising her while testifying, stating that he
“couldn’t tell if those were her words or her lawyer’s words when she
was talking.” Not only did the prosecutor state his belief that
witnesses had lied, he also alleged that the witnesses must have met
secretly in order to plan and collude regarding their testimony. That
was patently improper (see Bailey, 58 NY2d at 277).

     In addition to criticizing defendant’s case and witnesses, the
prosecutor also engaged in misconduct on summation by suggesting that
an acquittal would require the jury to find a conspiracy by law
enforcement (see People v Morgan, 75 AD3d 1050, 1053-1054, lv denied
15 NY3d 894), by improperly suggesting that defendant bore a burden of
proof (see People v Griffin, 125 AD3d 1509, 1510), and by misstating a
key point of law regarding detention incident to a traffic stop (see
generally People v Riback, 13 NY3d 416, 423). In light of the nature
and number of instances of prosecutorial misconduct, we conclude that
defendant was deprived of his right to a fair trial.

     In view of our determination, we do not address defendant’s
remaining contention that he was denied effective assistance of
counsel.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
