People v. Whalen, 59 N.Y.2d 273 (1983)

A prosecutor’s summation that misrepresents evidence, denies prior notice of an alibi, and implies recent fabrication, coupled with knowledge that the defendant was advised by counsel not to speak with the police, constitutes prosecutorial misconduct warranting a new trial.

Summary

Whalen was convicted of rape, but the conviction was reversed due to prosecutorial misconduct during summation. The prosecutor improperly characterized the defendant’s alibi as a recent fabrication, despite having prior notice and knowing that the defendant and his wife were advised by counsel not to speak to the police. The prosecutor also falsely denied that notice of the alibi had been given. The Court of Appeals held that this conduct prejudiced the defendant and warranted a new trial, emphasizing the prosecutor’s duty to seek justice, not just conviction.

Facts

Deborah C. was raped on July 4, 1979. She described her attacker as having shoulder-length blond hair, weighing 150-160 pounds, and being 5 feet 8 inches to 5 feet 9 inches tall. At trial, Whalen presented a “mistaken identification” defense and an alibi, claiming he was home sick at the time of the rape, corroborated by his wife. He presented evidence that his hair was red and that he was six feet tall. The defense had served notice of alibi more than eight months prior to trial.

Procedural History

The defendant was convicted of rape in the first degree in County Court. The Appellate Division affirmed the conviction. Leave to appeal was granted by a judge of the Court of Appeals. The Court of Appeals reversed the Appellate Division’s order and remitted the case for a new trial.

Issue(s)

1. Whether the trial court erred in refusing to give an expansive jury instruction on the scrutiny to be given to identification testimony.

2. Whether the jury charge on alibi improperly shifted the burden of proof to the defendant.

3. Whether the prosecutor’s conduct during summation constituted prosecutorial misconduct warranting a new trial.

Holding

1. No, because the trial court gave a technically correct, albeit minimal, instruction that the prosecutor had the burden of proving identification beyond a reasonable doubt.

2. No, because the defendant failed to properly preserve the objection to the alibi instruction for appellate review.

3. Yes, because the prosecutor’s repeated characterization of the defendant’s alibi as a fabrication, coupled with the false denial of prior notice and knowledge of the attorney’s advice, constituted prejudicial misconduct.

Court’s Reasoning

The Court found no legal error in the minimal identification instruction, noting that a general instruction on witness credibility coupled with the reasonable doubt standard for identification is technically correct. However, the Court advised that the better practice is to grant a defendant’s request for an expanded charge on identification, especially when mistaken identity is intertwined with an alibi.

The Court held that the objection to the alibi instruction was not preserved because the trial judge granted the request to charge, but the delivered charge was unsatisfactory, and defense counsel failed to alert the judge to the error. The Court distinguished this from People v. Le Mieux, where the request was denied outright.

The Court found that the prosecutor’s conduct during summation was improper and prejudicial. The prosecutor misrepresented the evidence by repeatedly characterizing the alibi as a recent fabrication, despite having received notice months earlier and knowing that defense counsel had advised both the defendant and his wife not to speak to the police. The prosecutor then falsely denied that notice had been given. The court stated, “This was completely unjustified, going far beyond any bounds of proper advocacy.” This conduct violated the prosecutor’s ethical obligation “to seek justice, rather than conviction” and warranted a new trial. The Court cited the Code of Professional Responsibility, EC 7-13, to support the prosecutor’s duty.