                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 2, 2016                        106580
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

TEJPAUL RUPNARINE,
                    Appellant.
________________________________


Calendar Date:   April 29, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Aarons, JJ.

                               __________


     Adam G. Parisi, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                               __________


Aarons, J.

      Appeal from a judgment of the Supreme Court (Milano, J.),
rendered November 25, 2013 in Schenectady County, upon a verdict
convicting defendant of the crimes of robbery in the second
degree, unlawful imprisonment in the first degree, menacing in
the second degree and criminal mischief in the fourth degree.

      Defendant was indicted and charged with multiple crimes
stemming from an incident in January 2013, where defendant lured
his ex-girlfriend to his house where he had been living, damaged
and deprived her of her cell phone, restrained her by physical
force, punched her and threatened her with a knife. Following a
jury trial, defendant was convicted of robbery in the second
degree, unlawful imprisonment in the first degree, menacing in
the second degree and criminal mischief in the fourth degree.
                              -2-                106580

Defendant was subsequently sentenced to an aggregate prison term
of seven years followed by five years of postrelease supervision.
Defendant's primary contention on appeal is that the prosecutor's
comments during summation deprived him of a fair trial. While
defendant did not preserve this argument for review due to his
failure to raise an objection during the prosecutor's summation
(see CPL 470.05 [2]), we exercise our interest of justice
jurisdiction and reverse (see People v Skinner, 298 AD2d 625, 626
[2002]).

      Counsel is afforded wide latitude during summations, but
when a prosecutor's remarks are so egregious such that they
deprive a defendant of a fair trial, reversal is warranted (see
People v Forbes, 111 AD3d 1154, 1160 [2013]). During his
summation, the prosecutor remarked that defendant failed to
provide an "innocent explanation" for his actions or that it was
necessary for him to do so. Indeed, a recurring and substantial
theme in the prosecutor's summation was defendant's inability to
provide an innocent explanation for his conduct following the
incident giving rise to the charges against him or for the
presence of incriminating evidence at the crime scene. We agree
with defendant that these comments improperly shifted the burden
of proof from the People to defendant (see People v Mitchell, 129
AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]; People v
Hendrie, 24 AD3d 871, 873 [2005], lv denied 6 NY3d 776 [2006];
People v Jamal, 307 AD2d 267, 268 [2003]). We also cannot say
that any error as a result of these statements was harmless. The
prosecutor's "innocent explanation" comments were neither
isolated nor fleeting but were repeated pervasively throughout
the summation.

      Furthermore, while Supreme Court instructed the jury that
the People maintained the burden of establishing defendant's
guilt beyond a reasonable doubt (see People v Morrison, 127 AD3d
1341, 1343 [2015], lv denied 26 NY3d 932 [2015]), such
instruction did not ameliorate the prejudice to defendant (see
People v Calabria, 94 NY2d 519, 523 [2000]). After Supreme Court
gave this instruction and during the jury's deliberation, the
jury sent a note requesting that Supreme Court read back the
prosecutor's summation, but only that portion of the summation
"that refer[red] to innocent explanations and lack of innocent
                              -3-                  106580

explanations." Even though Supreme Court declined to reread the
summation and reminded the jury that summations did not
constitute evidence, given the jury's focus on the "innocent
explanation" remarks, under the circumstances of this case, the
lack of a further instruction reminding the jury of the People's
burden of proof in response to the jury's request only compounded
the error of the prosecutor's comments. Based on the foregoing,
we conclude that defendant was prejudiced by the comments in the
prosecutor's summation and a new trial is required (see People v
Singh, 128 AD3d 860, 863-864 [2015]; People v Forbes, 111 AD3d at
1159; cf. People v Hopkins, 56 AD3d 820, 821 [2008]).

     McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur.



      ORDERED that the judgment is reversed, as a matter of
discretion in the interest of justice, and matter remitted to the
Supreme Court for a new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
