This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 29
The People &c.,
            Respondent,
        v.
Trevor Anderson,
            Appellant.




          A. Alexander Donn, for appellant.
          Terrence F. Heller, for respondent.




ABDUS-SALAAM, J.:
          Defendant Trevor Anderson was convicted, upon a jury
verdict, of attempted murder in the second degree (Penal Law §§
110.00, 125.25 [1]) and criminal possession of a weapon in the
second degree (Penal Law § 295.03 [1][b]).   Defendant argues that
he was deprived of a fair trial by the prosecutor's use of


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                                 - 2 -                        No. 29

PowerPoint slides during summation, and that defense counsel was
ineffective for failing to object to the use of the slides.
Defense counsel, who objected to one of the PowerPoint slides,
was not ineffective for failing to challenge the others, as the
vast majority were not objectionable.
                                  I.
          According to the People's proof at trial, on March 14,
2010, on a Brooklyn street, defendant approached Erick Brown-
Gordon, who was dating defendant's ex-girlfriend Diana Perez, and
shot him twice in the abdomen.    When Brown-Gordon turned around
and tried to flee, defendant shot him twice more, in the back.
Defense counsel argued at trial that Perez and Brown-Gordon were
not credible witnesses and had falsely identified defendant.
          The Appellate Division rejected defendant's challenges
to his conviction and affirmed the judgment (130 AD3d 1055 [2d
Dept 2015]). A Judge of this Court granted defendant leave to
appeal (26 NY3d 1162 [2016]).    We now affirm.
                                  II.
          In People v Ashwal (39 NY2d 106 [1976]), this Court
explained that it is "fundamental" that counsel must stay within
"the four corners of the evidence" during summation and that the
prosecutor "may not refer to matters not in evidence or call upon
the jury to draw conclusions which are not fairly inferable from
the evidence" (id. at 109 [internal citations omitted]; see also
CJI2d[NY] Pre-Summation Instructions ["summations provide each


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                                - 3 -                          No. 29

lawyer an opportunity to review the evidence and submit for (the
jury's) consideration the facts, inferences, and conclusions that
they contend may properly be drawn from the evidence"]).      The
PowerPoint slides used by the People in this case were consistent
with these principles.   As we observed in People v Santiago (22
NY3d 740, 751 [2014]), PowerPoint "slides depicting an already
admitted photograph, with captions accurately tracking prior []
testimony, might reasonably be regarded as relevant and fair []
commentary on the [] evidence, and not simply an appeal to the
jury's emotions."
            At bottom, a visual demonstration during summation is
evaluated in the same manner as an oral statement.    If an
attorney can point to an exhibit in the courtroom and verbally
make an argument, that exhibit and argument may also be displayed
to the jury, so long as there is a clear delineation between
argument and evidence, either on the face of the visual
demonstration, in counsel's argument, or in the court's
admonitions.   We reject defendant's position that trial exhibits
in a PowerPoint presentation may only be displayed to the jury in
unaltered, pristine form, and that any written comment or
argument superimposed on the slides is improper.   Rather,
PowerPoint slides may properly be used in summation where, as
here, the added captions or markings are consistent with the
trial evidence and the fair inferences to be drawn from that
evidence.   When the superimposed text is clearly not part of the


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                                - 4 -                         No. 29

trial exhibits, and thus could not confuse the jury about what is
an exhibit and what is argument or commentary, the added text is
not objectionable.   The slides, in contrast to the exhibits, are
not evidence.    The court properly instructed the jury that what
the lawyers say during summations is not evidence, and that in
finding the facts, the jury must consider only the evidence.      In
this case, as was appropriate, the jury was told that the
physical exhibits admitted into evidence would be made available
to them, while the slides were not supplied to the jury during
deliberations.
          Given the paramaters of the permissible use of
PowerPoint slides in summation, counsel was not ineffective for
failing to object.   For example, some of the slides were pictures
of exhibits with captions or numbers inserted to highlight the
relevant portion of those exhibits.     Two slides showed a portion
of the victim's medical records which included a diagram
depicting the location of four wounds.    One slide showed the
enlarged diagram, with superimposed text reading "Two Gun Shot
Wounds to front" and "Two Gun Shot Wounds to back." That text
accurately reflected the information in the exhibit.    Another
slide showed the same diagram, with numerals on each of the
respective markings representing the four wounds.    Defendant
asserts that the People improperly altered the medical records to
reflect their theory that the victim was shot four times, where
the records purportedly show that he was shot twice.    However,


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the medical records are not clear as to whether Brown-Gordon was
shot twice and sustained four wounds (i.e, one entrance and one
exit wound per shot), or was shot three or four times.    The text
inserted by the People referred to wounds, not shots, and the
prosecutor argued, consistent with Brown-Gordon's testimony, that
he had been shot four times.    These slides, and the oral argument
by the prosecutor, were fair comment on the evidence and the
reasonable inferences to be drawn from that evidence.
          Defendant also argues that his counsel was ineffective
for failing to object to slides that showed photographs, received
into evidence, of the street on which the shooting had occurred.
On two of those slides, the prosecutor had superimposed yellow
circles around street lamps which witnesses had testified had
sufficiently illuminated the street so that they were able to see
defendant.   On another slide, there was a superimposed circle
around the location where a testifying police officer said he had
found three shell casings.    These added markings did not
misrepresent the evidence.1
          Additionally, we reject defendant's argument that
defense counsel was ineffective for failing to object to the
prosecutor's use of a slide that showed defendant's arrest
photograph, which had been received in evidence, surrounded by a


     1
       The slides that did not display the exhibits but
summarized the evidence at trial were not objectionable, as they
did not "call upon the jury to draw conclusions which are not
fairly inferable from the evidence" (Ashwal, 39 NY2d at 109).

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                                - 6 -                        No. 29

superimposed circle, with boxes containing text summarizing the
People's theory of the case.2   Defendant argues that this slide
improperly altered the trial evidence and that the text boxes
surrounded defendant's face as if he were a target.   In our view,
the added text accurately tracked the witnesses's testimony and
the fair inferences to be drawn from the evidence, and the
placement of the text boxes around defendant's face was "not
simply an appeal to the jury's emotions" (Santiago, 22 NY3d at
751).
          Nonetheless, even accepting defendant's position that
this slide was objectionable, the display of this slide alone did
not deprive defendant of a fair trial.   Instead, as in Santiago,
"the objection to the PowerPoint presentation that defendant now
raises is not so 'clear-cut' or 'dispositive' an argument that
its omission amounted to ineffective assistance of counsel" (22
NY3d at 751).
          Finally, to the extent that the court made a Sandoval
ruling, defendant's claim that the ruling was in error is
unpreserved (see People v Hawkins, 11 NY3d 484, 494 [2008]).



     2
       The text in the boxes stated "3/14/10 - Armed himself with
a loaded and operable illegal .45 cal handgun"; "Made a series of
calls to Diana immediately before shooting"; "Lay in wait for
Erick-Brown Gordon with .45 cal handgun"; "Fired .45 handgun
twice from less than 8 feet away as Erick faced him"; "Fired .45
handgun twice more as Erick ran from deft"; "His bullets hit
Erick twice in front and twice in back"; "Defendant grabbed Diana
and fled scene"; and "3/24/10 - Erick identified deft as shooter
in line-up."

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                              - 7 -                        No. 29

          Accordingly, the order of the Appellate Division should
be affirmed.




                              - 7 -
People v Trevor Anderson
No. 29




RIVERA, J. (dissenting):
           The prosecutor's use of digitally edited reproductions
of exhibits to convey inferences and misinformation, as well as
to project defendant's image as the "face of death," exceeded the
bounds of proper summation.   A prosecutor may not use altered
copies of exhibits to suggest that the evidence unequivocally
establishes disputed facts or to distract the jury by playing to
emotion.   That, however, is what happened here.
           The PowerPoint presentation employed by the prosecutor
during summation included a modified version of defendant's
arrest photograph, with the picture of his head at the center of
a symbolic target.   This target was surrounded by eight boxes
containing both facts of the case and the prosecutor's inferences
and mischaracterizations of the evidence, all pointing directly
at defendant's face.   The reimagining of defendant's likeness --
through a powerful visual medium -- distracted the jury from the
unaltered trial evidence and the relevant facts, and was
accompanied by the prosecutor's verbal statements that appealed
to passion, not reason.
           The error was compounded by the prosecutor's showcase
of edited medical exhibits in two additional slides.   The slides
of the victim's hospital records contained superimposed words and


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                                 - 2 -                          No. 29

numbers which, in the context of the presentation, misled the
jury as to what the actual exhibits showed in order to suggest
that certain disputed facts were conclusively established at
trial, and to thereby bolster witness testimony.    These
alterations were the equivalent of using unadmitted evidence.
          The strategic use of technology to display visual
images enhanced the prejudicial impact of the edited
reproductions of these exhibits, and when combined with defense
counsel's failure to object to the offensive PowerPoint slides,
denied defendant a fair trial.    Even in the face of earnest
efforts to make the distinction between admitted evidence and
argument clear, overlaying evidence with embedded inferences
presents issues that cannot be overcome through jury instruction.
I would reverse and remit for a new trial.
                                  I.
          During summation, the prosecutor may marshal the
evidence so as to persuade the jury of defendant's guilt beyond a
reasonable doubt, based on the People's view of the facts
(CJI2d[NY] Final Instruction--Pre-Summation Instructions; 6 Am
Jur Trials 873; CPL 260.30[9]).    The prosecutor may
          "comment upon every pertinent matter of fact
          bearing upon the questions the jury have to
          decide. . . . And although counsel is to be
          afforded the widest latitude by way of
          comment, denunciation or appeal in advocating
          [counsel's cause,] summation is not an
          unbridled debate in which the restraints
          imposed at trial are cast aside so that
          counsel may employ all the rhetorical devices
          at [counsel's] command. There are certain

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                                 - 3 -                       No. 29
          well-defined limits."
(People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation
marks and citations omitted]).    It is a fundamental tenet of our
legal system that the People's "interest . . . in a criminal
prosecution is not that it shall win a case, but that justice
shall be done" and thus while the prosecutor in summation "may
strike hard blows, [the prosecutor] is not at liberty to strike
foul ones" (Berger v United States, 295 US 78, 88 [1935]; People
v Jones, 44 NY2d 76, 80 [1978]).
          The cardinal rule is that a summation, whether by the
People or the defense, "must stay within the four corners of the
evidence and avoid irrelevant comments which have no bearing on
any legitimate issue in the case" (Ashwal, 39 NY2d at 109
[internal quotation marks and citation omitted]).   In adherence
to this rule, the prosecutor cannot misstate the evidence, or
advance misleading representations to encourage inferences of
guilt based on facts not in evidence (People v Wragg, 26 NY3d
403, 411-412 [2015]).   "Above all [the prosecutor] 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
110).
          These proscriptions apply to the prosecutor's use of
the original physical exhibit or a technologically-generated
reproduction in summation.   I do not accept the majority's rule


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that "a visual demonstration during summation is evaluated in the
same manner as an oral statement" (maj op at 3).    Such an
approach ignores the impact of visual aids on the viewer and
assumes that the medium and manner by which ideas are
communicated has no independent effect on the way those ideas are
deconstructed and understood.    It also ignores the enhanced
effect of combining imagery with oral commentary.
                                  II.
           Every person who relies on visual aids to communicate a
message is likely cognizant of what the science bears out: the
medium of delivery has the potential to powerfully influence the
way the message is heard and retained (see Lucille A. Jewell,
Through a Glass Darkly: Using Brain Science and Visual Rhetoric
to Gain a Professional Perspective on Visual Advocacy, 19 S Cal
Interdisc LJ 237, 293 [2010]).    Research shows that pictures are
typically remembered better than words (see Mary Susan Weldon &
Henry L. Roediger, III, Altering Retrieval Demands Reverses the
Picture Superiority Effect, 15 Memory & Cognition 269, 269
[1987]).   Indeed, "with visual information, people believe what
they see and will not step back and critically examine the
conclusions they reach, unless they are explicitly motivated to
do so.   Thus, the alacrity by which we process and make decisions
based on visual information conflicts with a bedrock principle of
our legal system -- that reasoned deliberation is necessary for a
fair justice system" (Jewell, supra, at 293).    This can make the


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use of images at trial particularly problematic when combined
with language, as "annotating images with text . . . exacerbates
the interpretive distortion of images" (Elizabeth G. Porter,
Taking Images Seriously, 114 Colum L Rev 1687, 1755 [2014]).
Particularly troubling in the legal context are recent studies
showing "that photos that relate to, but do not provide any
evidence for, a claim . . . can nudge people towards believing
that the related claims are true, whether they are true or not"
(Eryn Newman & Neal Feigenson, The Truthiness of Visual Evidence,
24 The Jury Expert, 5:1 [Nov 2013]; see also Eryn Newman et al.,
Nonprobative photographs (or words) inflate truthiness, 19
Psychonomic Bulletin & R 969, 973 [2012] [studies have suggested
that "the mere presence of non-probative information such as
photos might rapidly inflate the perceived truth of many types of
true and false claims" and that this effect can last for up to
two days]).1   Furthermore, "images are much more immediately and
tightly linked with emotion than is text," so "while images offer
a wealth of creative and effective communication tools for
lawyers, the very elements that make them persuasive pose dangers
to the integrity of the decisionmaking process" (Porter, supra,




     1
       For a summary of much of this research and the case law,
see Matthew S. Robertson, Note, Guilty As Photoshopped: An
Examination of Recent Case Law and Scholarship Regarding the Use
of Non-Probative Images in the Courtroom, 55 Washburn LJ 731, 732
(2016).

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                                 - 6 -                           No. 29
at 1755-1756).2
          I have previously addressed how visual imagery can be
particularly impactful in summation,
          "when 'any argument that drones on for 5 or
          10 minutes on any one point, regardless of
          how effective its content is, will lose the
          jury' (Thomas A. Mauet, Trial Techniques 394
          [8th ed 2010]). Visual aids are a welcome
          relief since '[b]y the end of the trial,
          jurors are looking for new and fresh ways of
          receiving evidence and arguments' (id.). The
          use of technology at the end of closing
          argument may be particularly powerful. As
          one commentator has noted, '[t]he right to
          the final word has a psychological impact
          that makes it a forensic prize' (Siegel, New
          York Practice § 397 at 692 [5th ed 2011])."
(People v Santiago, 22 NY3d 740, 754 [2014] [Rivera, J.,
dissenting]).     The last side to comment and deploy a visual
presentation of its view of the case therefore gains an edge in
persuading the jury as it commences deliberations.     In the end,
if visual tools did not enhance the rhetorical impact of the
spoken word or persuade the viewer of the logic of an advocate's
reasoning, the prosecutor would not take the time to mark up
photos of exhibits, embed those photos with text and images
suggesting defendant's guilt, and present those images in a
PowerPoint slide show, as was done here.
          Given the potential that crafted visual demonstrations

     2
       "Visual presentations may send subconscious messages to
jurors, creating a significant risk that jurors reach verdicts
based on emotionalism and leaps in logic rather than on the facts
in evidence" (Janet L. Hoffman, Visual Advocacy: The Effective
Use of Demonstrative Evidence at Trial, 30 Litigation Journal
[Spring 2011] at 9).

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                              - 7 -                          No. 29
have to influence the viewer differently and more memorably than
the listener of words spoken without visual accompaniment, in
order to "stay within the four corners of the evidence," a
prosecutor may display an image of an altered exhibit if the
edited version: is intended to assist the jury with its fact-
finding function, as opposed to drawing the jury's attention away
from the relevant issues through prejudicial rhetoric; expresses
information that places the exhibit's relevance in context, such
as how the exhibit relates to the question of defendant's guilt;
accurately and precisely reflects the admitted testimony and
documentary evidence, as in the case of superimposed text of a
direct quote; or draws attention to some relevant aspect of the
exhibit with, for example, arrows, circles, or underlines.   Such
overlays do no more than represent and organize the evidence
clearly and in a manner that the prosecutor believes will
ultimately persuade the jury to convict.
          By contrast, the prosecutor may not seek to influence
the jury's deliberative process by taking an exhibit, copying or
enlarging it, and then superimposing on the image inferences to
be drawn from the evidence about defendant's guilt.   An image of
an exhibit embedded with an inference enhances the risk that
jurors will treat the inference as an undisputed fact, especially
where the image is presented alongside reproductions of other
exhibits that contain superimposed testimony.   In that way, the
altered image elevates argument into fact.   Allowing such images


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also increases the risk that unreasonable inferences will be
adopted by the jury.   Similarly, the prejudicial impact of
inferences that appeal to emotion rather than fact is amplified
when combined with a visual image.     While a phrase mentioned once
in passing may not leave an indelible mark or be sufficiently
egregious on its own to sway the jury, the odds that an
inflammatory remark will be noted, remembered, and revisited
during the deliberative process increase when that remark is
presented visually on an edited exhibit (Miriam Z. Mintzer & Joan
Gay Snodgrass, The Picture Superiority Effect: Support for the
Distinctiveness Model, 112 Am J Psychology 113, 113 [1999]
[explaining that pictures are easier to remember than roughly
equivalent denotational words]).
           The majority's assertion that a jury knows the added
text is not part of either the trial exhibits or evidence is
unresponsive to the issues presented on this appeal (maj op at
4).   We are not asked to assume that a juror could not make this
distinction, but rather to consider the prejudice associated with
overcoming the visual cues.   Moreover, it is no answer to state
that the jury only has access to the original exhibits and not
the prosecutor's summation materials when the prosecutor has the
last word and defense counsel cannot respond to the inferences in
the exhibit (compare Siegel, supra, at § 397 ["Plaintiffs are
comforted throughout their summations by the knowledge that the
defendant will not get another chance to address this jury."]).


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                                - 9 -                         No. 29
Of course, there is no assurance jurors will confirm their
impression of the facts by referring back to the exhibits.
           Rather than rely on the judge's instructions to "cure"
the effect of any possible confluence of inference and fact, or
to dispel confusion after the jury has been exposed to the edited
exhibit image, it is simply easier -- and fairer -- to maintain
the separation between exhibits and the prosecutor's inferences.
As Justice Thurgood Marshall noted, "it is quite unrealistic to
believe that instructions to disregard evidence that a jury might
treat in a manner highly prejudicial to a defendant will often be
followed" (Chaffin v Stynchcombe, 412 US 17, 41 [1973] [Marshall,
J., dissenting]).   Judge Learned Hand similarly expressed that
under some circumstances a limiting instruction may be "a
recommendation to the jury of a mental gymnastic which is beyond,
not only their powers, but anybody's else [sic]" (Nash v United
States, 54 F2d 1006, 1007 [2d Cir 1932]).    As such, it is
preferable to avoid the problem before it is necessary to cure
it.   This way the jury will not confuse fact with the
prosecutor's inference or suggestion.
                                III.
           Defendant's arrest photo, taken ten days after the
incident, was admitted into evidence despite no apparent
relevance to the issues.    The victim identified defendant, whom
he had met on multiple occasions, as the assailant three separate
times during the trial.    During the testimony of a subsequent


                                - 9 -
                              - 10 -                          No. 29
witness, the People offered the photo into evidence as
representative of defendant's appearance on the day of the line
up -- a matter not in dispute.   After defense counsel objected on
relevance grounds the judge admitted the photo, stating "if
that's the only problem or objection, I will receive it, and the
jury will find it helpful, or perhaps not."
          While "[a]n arrest photograph may be admitted into
evidence in order to establish that a defendant's appearance was
different at the time of the commission of the crime than at
trial" (People v Ahmr, 22 AD3d 593, 594 [2d Dept 2005]), to show
defendant's appearance on the date of the crime (People v
Santana, 162 AD2d 191, 192 [1st Dept 1990]), or for other
identification issues (see People v Richards, 220 AD2d 268, 269
[1st Dept 1995]), when "the complainant and the arresting officer
had no trouble identifying defendant in court, there [i]s no
legitimate need for the prosecutor to offer into evidence
defendant's arrest photographs" (People v Black, 117 AD2d 512,
513 [1st Dept 1986]; see also State v Lazo, 209 NJ 9, 19 [2012]
["(I)f identification is an issue and the State's use of a mug
shot is reasonably related to that issue, an arrest photo may be
admitted only if it is presented in as neutral a form as
possible."]).   While the prejudice to the defense from the
admission of an arrest photo is most often related to its
implication that the defendant has a criminal record (see e.g.
United States v Harrington, 490 F2d 487, 490 [2d Cir 1973]),


                              - 10 -
                              - 11 -                          No. 29
there is an additional source of potential prejudice, as when the
photo is unrelated to identification testimony and serves only to
show defendant in a negative light (see Paul Lashmar, How to
Humiliate and Shame: A Reporter's Guide to the Power of the
Mugshot, Social Semiotics, 24(1), 56-87 [2014] [examining the
history and cultural significance of mugshots]).
          In defendant's case, the prosecutor relied on the
exhibit twice in summation and not to argue a disputed question
of identification, but for impassioned rhetorical emphasis.    An
unedited slide of the exhibit opened the prosecution's PowerPoint
presentation, over which the prosecutor remarked, "[t]hat's the
face of the man that [the victim] told you he saw right before
the defendant shot him."   The prosecutor ended his summation with
a highly edited version of the exhibit, one that placed
defendant's head in what appears to be a target.   The composition
of the arrest photo, overlaid with an orange circle and text
boxes with arrows pointing at defendant's face, containing
snippets of testimony and the prosecutor's inferences, is clearly
designed to manipulate the jury's reasoned deliberation by
appealing to their emotions and prejudices.
          This imagery is reminiscent of cases in which edited
arrest photos were found to be improper summation material
because of superimposed descriptive labels and inferences which
appealed to passion.   In re McKague (182 Wash App 1008 [Wash Ct
App Div 1 2014]) involved a prosecutor's slide which featured the


                              - 11 -
                               - 12 -                           No. 29
defendant in the center of a circle with the word "GUILTY"
overlaid over his face.    Text surrounded the circle, with each
phrase pointing towards the defendant.    The phrases included text
that summarized the trial testimony such as "intended to commit
theft," "during the taking the defendant resorted to force,"
"took can of oysters," etc.    The court found that the "slide was
a calculated device employed by the prosecutor to manipulate the
jury's reasoned deliberation and impair its fact finding
function.   It substantially undermined [the defendant's] right to
a fair trial" (id.).    Similarly, the court sitting en banc in In
re Glasmann (175 Wash 2d 696, 286 P3d 673 [2012]) ordered a new
trial because the prosecutor committed pronounced and persistent
misconduct when he overlaid the phrase "guilty" across
defendant's arrest photo on three separate occasions, as well as
phrases like "do you believe him?" and "why should you believe
anything he says about assault?" (see also State v Walker, 182
Wash 2d 463, 341 P3d 976 [2015]).    In State v Walter (479 SW3d
118, 127 [Mo 2016]), the en banc court found overlaying the word
"guilty" over defendant's booking photo amounted to prejudicial
error requiring a new trial (see also Watters v State, 313 P3d
243, 129 Nev Adv Op 94 [2013] [booking photo overlaid with the
word "guilty" used during a PowerPoint in People's opening
statement so prejudicial as to require a new trial]).
            The circle around defendant's head, surrounded by
numerous text-filled boxes with arrows pointing towards him, with


                               - 12 -
                               - 13 -                          No. 29
one text box asserting that defendant "[l]ay in wait for [the
victim] with .45 cal handgun," is equivalent to defendant's image
superimposed with the word "guilty" over it.    Just as in In re
Glasmann, this imagery, along with a statement not in evidence
that implies defendant's actions were predatory, manifests an
appeal to the passions and prejudice of the jury (175 Wash 2d at
681).   The slide is a clear visual communication to the jury that
the defendant is a frightening man whom the state has dedicated
significant resources to target.
            The edited exhibit does not even comply with the
majority's rule because the slide is not merely a display of a
verbal argument or the equivalent to pointing at something.     The
prosecutor could not physically draw a circle with arrows
pointing at defendant and, significantly, could not
simultaneously have asserted all the statements contained in the
text boxes.    That imagery is only possible through the editing of
the exhibit.    Moreover, contrary to the majority's claims, the
text in the final slide does not "accurately track[] the
witnesses's testimony and the fair inferences to be drawn from
the evidence" (maj op at 6).    The notion that defendant "lay in
wait for" the victim outside is belied by the trial testimony
that he told his ex-girlfriend that he was on his way into the
building.    When she tried to dissuade him, he told her if she did
not come out he would go in.    Similarly, there was no testimony
at trial to suggest that the victim was shot with an "illegal"


                               - 13 -
                              - 14 -                          No. 29
handgun as the gun was never recovered.   Other text boxes present
disputed claims as facts, such as the number of shots and the
distance between the shooter and the victim.   The text boxes
blended the facts, inferences, and speculation and did not
present a "clear delineation between argument and evidence" (id.
at 3).   Nor does this final slide avoid "an appeal to the jury's
emotions" (id. at 6).   The intent of the edited exhibit was laid
bare when, during the display of the slide, the prosecutor
dramatically declared that defendant's image: "was the face of
death on March 14, 2010."3
          In addition, the prosecutor's use of slides depicting
edited images of the victim's hospital records was improper
because the slides were misleading.    The added text and numbers
appeared to scientifically confirm the victim was shot four
times, twice in the front and then twice in the back, when the
hospital records did not establish the number and order of shots.
This is a further example of why an inference -- here that the
victim was shot four times, twice in the back -- can be confused
as an undisputed fact and should not be superimposed on a
reproduction of an exhibit.
          These slides were additionally prejudicial to defendant
because medical documents, like the hospital records here, have
an air of objectivity that can carry significant weight with the



     3
       Defense counsel's objection to this statement was
overruled.

                              - 14 -
                              - 15 -                           No. 29
jury (see Vella v Commr. of Soc. Sec., 394 Fed Appx 755, 757 [2d
Cir 2010] [medical records considered "objective evidence"]).
The prosecutor used the slides to convey that the victim was shot
four times, and stated that the exhibits were physical evidence
corroborating the victim's testimony to that effect.   Thus, the
exhibit was used as objective evidence to bolster the victim's
testimony and undermine the defense's argument that the victim
was not telling the truth.
                                IV.
           The prosecutor exceeded the scope of proper summation
by including in his PowerPoint presentation edited slides
featuring defendant's arrest photo and hospital records that
misrepresented the evidence, misled the jury, and appealed to
emotion.   Defense counsel should have objected during summation
(People v Wright, 25 NY3d 769, 780 [2015]).   His failure to do so
deprived defendant of meaningful representation, and left
defendant vulnerable to the force of these slides on the jury's
deliberations.   There was no strategic reason for counsel's
silence (id.), as he was aware before summations that the
PowerPoint presentation would be -- as counsel described it -- "a
force to be reckoned with."   Given the impact of summation,
counsel's failure to object constituted ineffective assistance of
counsel (id.; People v Fisher, 18 NY3d 964, 967 [2012]).    For the
reasons I have discussed, the display of these slides, and
defense counsel's failure to object, denied defendant a fair


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trial and was highly prejudicial (People v Baldi, 54 NY2d 137,
147 [1981]; Strickland v Washington, 466 US 668, 686 [1984]).
            I dissent.
*   *   *     *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Abdus-Salaam. Chief Judge
DiFiore and Judges Stein, Garcia and Wilson concur. Judge Rivera
dissents in an opinion in which Judge Fahey concurs.

Decided April 4, 2017




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