People v. Carey, 73 N.Y.2d 820 (1988)

A prosecutor’s remarks during summation warrant a new trial only if they demonstrate a decided tendency to prejudice the jury, and even then, they must be evaluated in the context of the entire trial, including the defense’s summation.

Summary

Defendant Carey was convicted of multiple counts of sodomy and endangering the welfare of a child based on testimony from teenage boys. He appealed, alleging prosecutorial misconduct during summation and inappropriate consideration of community sentiment during sentencing. The New York Court of Appeals affirmed the conviction, holding that the prosecutor’s remarks did not demonstrate a decided tendency to prejudice the jury, especially considering the defense’s own summation, and that the sentencing statement, read in context, was unobjectionable. The court also rejected the defendant’s challenge to the constitutionality of the age of consent.

Facts

Carey was accused of showing pornographic films to teenage boys in his home. The teenagers testified that Carey masturbated before them, solicited sex from them, and engaged in sodomy with two of them. Based on this testimony, Carey was convicted on five counts of sodomy in the third degree and three counts of endangering the welfare of a child. He was subsequently sentenced to five consecutive prison terms.

Procedural History

Following his conviction in Chemung County Court, Carey appealed to the Appellate Division, arguing prosecutorial misconduct during summation and inappropriate sentencing. The Appellate Division affirmed the conviction. Carey then appealed to the New York Court of Appeals.

Issue(s)

1. Whether the prosecutor’s remarks during summation had a decided tendency to prejudice the jury, thus warranting a new trial.
2. Whether the sentencing judge inappropriately considered community sentiment and religious beliefs in imposing the sentence.
3. Whether the age of consent established by the Legislature is unconstitutional.

Holding

1. No, because the prosecutor’s remarks, viewed in the context of the entire trial and the defense summation, fell within the latitude afforded to attorneys in advocating their cause, and any potential prejudice was cured by a curative instruction.
2. No, because the sentencing statement, when read in context, was unobjectionable.
3. No, the court found no merit to the defendant’s contention that the age of consent established by the Legislature is unconstitutional.

Court’s Reasoning

The Court of Appeals applied the standard set forth in People v. Ashwal, requiring the defendant to show that the prosecutor’s remarks had “a decided tendency to prejudice the jury.” The court emphasized that the prosecutor’s closing statement must be evaluated in light of the defense summation, which had put into issue the complainants’ character and credibility. The court found that the prosecutor’s reference to the defendant’s failure to testify was followed by a curative instruction, mitigating any potential prejudice. The court quoted Williams v. Brooklyn El. R.R. Co., noting that attorneys are afforded latitude in advocating their cause. Regarding the sentencing, the court found no evidence that the judge inappropriately considered community sentiment or religious beliefs, distinguishing the case from United States v. Bakker. The court summarily dismissed the defendant’s constitutional challenge to the age of consent. The court stated that the prosecutor’s portrayal of the complainants in the closing statement, when viewed in the context of the entire trial, fell within the latitude afforded to attorneys in advocating their cause. “Moreover, the prosecutor’s closing statement must be evaluated in light of the defense summation, which put into issue the complainants’ character and credibility and justified the People’s response.”