New York Law Review

Tag: Summation

  • People v. Williams, 28 N.Y.3d 86 (2016): Use of PowerPoint Presentations in Summation and the Limits of Attorneys’ Comments

    People v. Williams, 28 N.Y.3d 86 (2016)

    Attorneys are afforded broad latitude in summation, but improper statements can deprive a defendant of a fair trial, particularly when a PowerPoint presentation misrepresents evidence; prompt corrective action by the trial court can mitigate prejudice.

    Summary

    In People v. Williams, the New York Court of Appeals addressed the propriety of a prosecutor’s use of a PowerPoint presentation during summation. The court found that while PowerPoint presentations are permissible, they must accurately reflect the trial evidence. The court held that the trial court’s prompt intervention to correct misrepresentations in the presentation, along with strong jury instructions, mitigated any potential prejudice to the defendant and did not deprive him of a fair trial. The case underscores the importance of accurate representation of evidence, and the crucial role of the trial court in ensuring a fair trial.

    Facts

    The defendant was convicted of burglary, assault, and criminal possession of a weapon for a home invasion and assault. During the trial, surveillance footage and photos were introduced. During summation, the prosecutor used a PowerPoint presentation containing slides with images from the trial exhibits, annotating some with captions that the defense argued misrepresented witness testimony. The trial court sustained objections to some of the annotations and instructed the jury to disregard certain statements and ultimately curtailed the PowerPoint presentation, preventing further annotated slides. The defendant was convicted, and the Appellate Division affirmed.

    Procedural History

    The defendant was convicted in the trial court. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the prosecutor’s use of a PowerPoint presentation during summation, including annotations that allegedly misrepresented evidence, deprived the defendant of a fair trial.

    Holding

    1. No, because the trial court’s actions in correcting the presentation and instructing the jury mitigated any potential prejudice to the defendant.

    Court’s Reasoning

    The court recognized that attorneys have broad latitude in summation, but that such latitude is not unlimited. Improper statements, especially those misrepresenting evidence, can deprive a defendant of a fair trial. The court noted that the same rules that apply to oral statements in summation also apply to visual aids, such as PowerPoint presentations. The court emphasized that annotations on PowerPoint slides must accurately reflect the evidence. The court considered the trial court’s prompt and decisive actions, including instructing the jury to disregard the annotations, curtailed the presentation, and reminded the jury that arguments were not evidence. The court also noted that the actual trial exhibits remained available for the jury’s independent examination. The court also referenced that the defense counsel rejected the offer of a mistrial. Therefore, the Court of Appeals held that the defendant was not deprived of a fair trial.

    Practical Implications

    This case provides guidance on the use of PowerPoint presentations in summation. Attorneys must ensure that any visual aids accurately reflect the evidence presented at trial. Courts will consider the trial court’s response to any alleged misrepresentations in determining whether a defendant was deprived of a fair trial. Trial courts should consider the implications of allowing annotations to exhibits and take prompt corrective action if necessary, including giving clear instructions to the jury. This case serves as a reminder that a trial court’s actions are critical in upholding a fair trial. Later courts should consider the overall performance of trial counsel and the curative actions of the court.

  • People v. Wright, 25 N.Y.3d 769 (2015): Ineffective Assistance of Counsel – Failing to Object to Prosecutorial Misconduct During Summation

    People v. Wright, 25 N.Y.3d 769 (2015)

    Defense counsel’s failure to object to a prosecutor’s misrepresentation of critical DNA evidence during summation, where there was no strategic reason for the silence, constitutes ineffective assistance of counsel and violates the defendant’s right to a fair trial.

    Summary

    In this New York case, the defendant was convicted of second-degree murder based largely on circumstantial evidence, including DNA analysis. The prosecution’s case was bolstered by their closing argument, which misrepresented the limitations of the DNA evidence and implied a direct link between the defendant and the crime. Defense counsel failed to object to these misrepresentations. The Court of Appeals held that this failure, absent a strategic justification, deprived the defendant of effective assistance of counsel because it allowed the jury to be misled on critical evidence, thereby compromising the fairness of the trial. The court reversed the conviction and ordered a new trial.

    Facts

    Howard Wright was tried for the 1995 murder of a female drug user. There were no eyewitnesses to the crime. The prosecution relied heavily on DNA evidence, which indicated that the defendant could not be excluded as a contributor to DNA samples from the crime scene. The prosecution’s closing argument misrepresented this evidence, arguing that the DNA proved the defendant’s presence at the crime scene. Defense counsel failed to object to these misrepresentations.

    Procedural History

    The defendant was convicted of second-degree murder. The Appellate Division affirmed the conviction by a 3-2 vote. The dissenting justices would have reversed on grounds of prosecutorial misconduct and ineffective assistance of counsel. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether defense counsel provided ineffective assistance of counsel by failing to object to the prosecutor’s misrepresentations of DNA evidence during summation.

    Holding

    1. Yes, because the defense counsel’s failure to object to the misrepresentations of DNA evidence during summation, where such failure could not be explained by trial strategy, constituted ineffective assistance of counsel.

    Court’s Reasoning

    The court applied the standard for ineffective assistance of counsel established in People v. Baldi, 54 N.Y.2d 137 (1981), which requires a showing that counsel failed to provide meaningful representation. This requires a consideration of the evidence, the law, and the circumstances of the case. The court found that the prosecutor’s misrepresentations of the DNA evidence were a key point of argument. Specifically, the prosecutor made assertions that contradicted expert testimony and overemphasized the probative value of the evidence.

    The court emphasized that the DNA evidence was crucial, yet its limitations were misrepresented. The prosecutor’s claim that the defendant’s DNA was found on a ligature contradicted the expert testimony that only indicated the defendant could not be excluded as a possible contributor. The court also highlighted that the expert stated there was no reasonable explanation of how the defendant's DNA was on the ligature. This misrepresentation was particularly damaging because the DNA evidence was the strongest evidence against the defendant. The court found no strategic reason for the defense counsel's failure to object, and the cumulative effect of these misrepresentations deprived the defendant of a fair trial. The Court referenced People v. Ashwal, 39 N.Y.2d 105 (1976), in its decision. The Court held that the prosecutor had exceeded the limitations of summation by misrepresenting the evidence.

    A dissenting opinion argued that the defense counsel had provided effective assistance, and that the prosecutor’s statements had to be evaluated in context. The dissent argued that the prosecutor's statements were fair comments on the DNA evidence and did not misrepresent it.

    Practical Implications

    This case emphasizes the importance of a defense attorney objecting to prosecutorial misconduct. It sets a precedent for evaluating claims of ineffective assistance of counsel. The court considered the cumulative effect of the attorney’s failures. Defense attorneys must be vigilant in objecting to inaccurate and misleading statements that significantly prejudice their client's case. This is particularly important when, as here, the misrepresentation concerns critical scientific evidence like DNA. The decision also reflects the courts' concerns about the persuasive nature of DNA evidence.

    Subsequent cases should consider this precedent regarding how to address DNA evidence and attorney error during summation. The ruling impacts how attorneys prepare for summation and the need to address potential misrepresentations. The decision underscores the importance of effectively cross-examining forensic experts to highlight the limitations of scientific evidence and prepare the jury to understand those limitations.

  • People v. Ashwal, 39 N.Y.2d 105 (1976): Scope of Permissible Summation Arguments

    People v. Ashwal, 39 N.Y.2d 105 (1976)

    Counsel’s privilege to comment in summation is not a license to state facts not in evidence or argue theories with no evidentiary support.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for assault, attempted coercion, and weapons possession. The defendant challenged the trial court’s preclusion of a summation argument suggesting the shooting victim initially displayed the gun. The Court of Appeals held that allowing such an argument would be improper because it lacked evidentiary support. The Court emphasized that summations must be based on reasonable inferences from the evidence presented, and counsel cannot introduce unsupported factual claims or theories. The court also found that a challenged portion of the jury charge, when viewed in its entirety, did not mislead the jury regarding the standard of proof beyond a reasonable doubt.

    Facts

    The defendant was convicted of shooting a friend during a dispute. At trial, the defendant sought to argue during summation that the victim of the shooting was the first person to display the gun. There was testimony from a police officer that the victim described the gun as “heavier” (meaning larger) than a comparison gun shown to her. The trial court precluded the defendant from making this argument.

    Procedural History

    The defendant was convicted in the trial court of assault in the first degree, attempted coercion in the first degree, and criminal possession of a weapon in the second degree. The Appellate Division affirmed the conviction. The case was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in precluding the defendant from arguing in summation that the shooting victim was the first person to display the gun.

    2. Whether a challenged portion of the jury charge, regarding the victim’s testimony satisfying proof beyond a reasonable doubt, constituted reversible error.

    Holding

    1. No, because the requested summation argument called on the jury to reach conclusions that were “not fairly inferrable from the evidence.”

    2. No, because the jury charge, when read as a whole, did not likely confuse the jury.

    Court’s Reasoning

    Regarding the summation argument, the Court of Appeals emphasized that “the privilege of counsel to comment in summation on any matters of fact pertinent to questions that the jury must decide is not absolute.” The Court cited Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 103 (1891), stating that the privilege “can never operate as a license to state to a jury facts not in evidence” or to argue unsupported theories.

    The Court found no evidentiary basis for the argument that the victim first displayed the gun. The police officer’s testimony regarding the victim’s description of the gun’s size did not support the theory. Therefore, the trial court correctly precluded the argument.

    Regarding the jury charge, the Court applied the principle that a challenged sentence should not be considered in isolation but rather in the context of the entire charge. The Court cited People v. Fields, 87 N.Y.2d 821, 823 (1995). While the challenged sentence, standing alone, was inaccurate, the Court found that the trial court immediately corrected itself by stating the principle correctly. Additionally, the court repeatedly emphasized the jury’s duty to determine whether the charged crimes had been proved beyond a reasonable doubt. Therefore, no reasonable juror would have been misled.

    The court emphasized that the central duty of the jury was to decide whether the charged crimes had been proved beyond a reasonable doubt. In light of the charge as a whole, no reasonable juror would have concluded that if he or she found the victim’s testimony credible, then he or she had to find defendant guilty, without assessing whether all of the evidence was sufficient to show beyond a reasonable doubt that defendant was guilty.

  • People v. Riback, 13 N.Y.3d 416 (2009): Limits on Expert Testimony and Prosecutorial Misconduct in Summation

    13 N.Y.3d 416 (2009)

    A prosecutor’s summation that ventures well beyond the evidence, especially when combined with improperly admitted expert testimony, can deprive a defendant of a fair trial, warranting reversal of the conviction.

    Summary

    Phillip Riback, a pediatric neurologist, was convicted of multiple felonies and misdemeanors for sexual contact with young male patients. The New York Court of Appeals reversed the conviction, finding that the prosecutor’s summation, coupled with the trial court’s admission of certain expert testimony, deprived Riback of a fair trial. The prosecutor’s remarks included suggesting Riback was a pedophile, implying uncharged victims existed, and commenting on the defendant’s use of lawyers and jury consultants. The Court of Appeals held that the cumulative effect of these improper comments, particularly given the inflammatory nature of the charges, created a reasonable possibility that the prosecutorial misconduct contributed to the verdict.

    Facts

    Defendant, a pediatric neurologist, was charged with sexual offenses against 14 young male patients between 1997 and 2002. Extensive media coverage surrounded his arrest. At trial, the prosecution presented testimony from the alleged victims, their parents, police investigators, a medical conduct investigator, a pediatric neurologist, and a psychologist specializing in sex offender treatment. The defense argued that any unusual behavior by Riback was to build rapport and that accusations were the result of suggestive questioning.

    Procedural History

    The jury convicted Riback. He moved to vacate the judgment based on new evidence and a post-trial diagnosis of Asperger’s syndrome; the motion was denied. The Appellate Division affirmed the judgment and order, reducing the sentence in the interest of justice. A dissenting Justice granted leave to appeal to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred by allowing Dr. Hamill to testify about the meaning of “pedophilia,” “ephebophilia,” and “sexual fetish.”

    2. Whether the prosecutor’s summation deprived the defendant of a fair trial.

    Holding

    1. No, because the trial judge did not err when he allowed Dr. Hamill to explain what the term “sexual fetish” means and to give some examples.

    2. Yes, because the prosecutor’s summation, when combined with the improperly admitted expert testimony regarding “pedophilia,” ventured beyond the bounds of fair comment and deprived the defendant of a fair trial.

    Court’s Reasoning

    The Court of Appeals found that the trial court’s decision to allow expert testimony on the definition of “sexual fetish” was permissible, as it was beyond the ken of the average juror and potentially useful in evaluating the evidence. However, allowing Dr. Hamill to define “pedophilia” was deemed erroneous, as the information was likely already known to the jurors.

    The court emphasized the cumulative effect of the prosecutor’s misconduct during summation. The prosecutor linked the defendant to the term “pedophile,” implied the existence of numerous uncharged victims, commented on the difficulty for children to testify, and suggested the defendant was manipulating the jury through wealth. The court stated, “After a certain point, though, the cumulative effect of a prosecutor’s improper comments during summation may overwhelm a defendant’s right to a fair trial.”

    The Court referenced the dissenting Justice’s opinion in the Appellate Division: “these numerous ‘summation misstatements of fact and law . . . when combined with the opinion by the prosecutor that defendant’s acts were those of a pedophile . . . rose to such a level that defendant was deprived of the fair trial to which he was entitled.’”

    Ultimately, the Court concluded that, given the inflammatory nature of the charges, there was a reasonable possibility that the prosecutorial misconduct contributed to the verdict, thus warranting a new trial.

  • People v. McDaniels, 793 N.E.2d 383 (N.Y. 2003): Propriety of Race-Based Summation Arguments

    People v. McDaniels, 793 N.E.2d 383 (N.Y. 2003)

    A prosecutor’s summation argument that a witness’s identification of a defendant is more reliable because both are of the same race is improper when race-based identification was not part of the trial record and the evidence of guilt is not overwhelming.

    Summary

    McDaniels was convicted of criminal possession of a weapon. During summation, the prosecutor argued that the identification of McDaniels by a witness was “more reliable” because both were African-American. The defense objected, but the objection was overruled. The New York Court of Appeals reversed the conviction, holding that the prosecutor’s race-based argument was improper because the issue of race-based identification formed no part of the record and the proof of guilt was not overwhelming. The court emphasized that the error was compounded by the trial court’s failure to provide a curative instruction.

    Facts

    An altercation involving a crowd occurred on a public street. Andrew Washington, an off-duty employee of the Rennselaer County Sheriff’s Office, witnessed the event. Washington saw a crowd chasing and beating someone. He then heard a gunshot and saw a young African-American male holding a handgun. Washington identified McDaniels, who is also African-American, as the shooter to the police at the scene. At trial, Washington’s in-court identification was the only direct evidence linking McDaniels to the gun. McDaniels presented witnesses who claimed he was present but did not fire the weapon.

    Procedural History

    Following a jury verdict, McDaniels was convicted of criminal possession of a weapon in the third degree. The Appellate Division affirmed the conviction. The dissenting Justice at the Appellate Division granted leave to appeal to the New York Court of Appeals. The Court of Appeals reversed the conviction.

    Issue(s)

    Whether it is proper for a prosecutor to argue in summation that a witness’s identification of a defendant is “more reliable” because both the witness and the defendant are of the same race, when the issue of race-based identification was not introduced as evidence during the trial.

    Holding

    No, because the prosecutor’s argument introduced an issue outside the record, improperly vouched for the witness’s credibility, and the error was not harmless given that the case turned on the jury’s assessment of a single witness.

    Court’s Reasoning

    The Court of Appeals held that the prosecutor’s summation was improper. The court reasoned that the issue of race-based identification was not part of the trial record. By raising it during closing arguments, the prosecutor had the last word on a subject not properly before the jury. The court emphasized that this error was compounded by the trial court’s failure to give a curative instruction. The court explicitly stated that it was not addressing the admissibility of expert testimony on cross-racial identifications, as that issue was not before them. The court stated: “By raising it for the first time during closing argument, the prosecutor had the sole, final, inapt word on the subject. Moreover, the error was compounded by the court’s failure to give a curative instruction or otherwise rectify the situation. Instead, it overruled the objection, and thus allowed the prosecutor to vouch improperly for the credibility of the witness by arguing that intraracial identifications are ‘more reliable.’” Since the proof of defendant’s guilt was not overwhelming and the case turned on the jury’s assessment of a single witness, the error was not harmless. Therefore, the Court reversed the Appellate Division’s order and ordered a new trial.

  • People v. Carey, 73 N.Y.2d 820 (1988): Evaluating Prosecutorial Misconduct in Summation

    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.”

  • People v. Morgan, 66 N.Y.2d 255 (1985): Harmless Error Despite Improper Prosecutorial Comments

    People v. Morgan, 66 N.Y.2d 255 (1985)

    A prosecutor’s improper comments during summation do not warrant reversal of a conviction if the error is harmless in light of overwhelming evidence of the defendant’s guilt and did not deprive the defendant of a fair trial.

    Summary

    Michael Morgan was convicted of rape, sodomy, sexual abuse, and burglary. The Appellate Division reversed his conviction due to improper comments made by the prosecutor during summation. The New York Court of Appeals reversed the Appellate Division’s order, holding that the prosecutor’s comments, while improper, constituted harmless error given the overwhelming evidence of Morgan’s guilt. The court emphasized that the comments did not deprive Morgan of a fair trial. This decision clarifies that prosecutorial misconduct during summation does not automatically warrant reversal if the evidence against the defendant is substantial and the misconduct does not fundamentally undermine the fairness of the trial.

    Facts

    The complainant was attacked in her apartment by two men wearing stocking masks. Prior to the attack, the complainant received a phone call from Morgan, whom she knew, inquiring about purchasing marihuana from her boyfriend. The complainant described her attackers by their contrasting height and build, matching Morgan and his codefendant, Postell. Witnesses placed Morgan and Postell at the complainant’s building around the time of the attack. One witness overheard Morgan and Postell discussing their desire to “rip something off” shortly before the incident. Morgan later admitted to being in Mountaindale at the time of the rape and to speaking with the complainant but denied any involvement in the crime. Another witness testified that Morgan bragged about having sex with a white girl in Mountaindale.

    Procedural History

    Morgan and Postell were indicted on charges of rape, sodomy, sexual abuse, and burglary. The first trial resulted in a hung jury for Morgan, while Postell was convicted. Morgan was retried and convicted. The Appellate Division reversed Morgan’s conviction, citing improper prosecutorial comments during summation. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecutor’s improper comments during summation deprived the defendant of a fair trial, warranting reversal of his conviction, despite overwhelming evidence of guilt.

    Holding

    No, because in the context of the entire summation and the overwhelming evidence of guilt, the prosecutor’s comments constituted harmless error and did not deprive the defendant of a fair trial.

    Court’s Reasoning

    The Court of Appeals acknowledged that the prosecutor’s comments, where he contrasted the defendant’s demeanor with how he himself would have reacted to similar accusations, were improper. However, the court distinguished this case from People v. Conyers and People v. Bailey, noting that the prosecutor’s remarks related to the defendant’s voluntary statements to the police, not his post-arrest silence. The court emphasized the overwhelming evidence of Morgan’s guilt, including witness testimony placing him at the scene, his own admission of being in Mountaindale at the time of the rape, and Penny Troy’s testimony regarding Morgan’s bragging about a sexual encounter. The court stated, “Although the prosecutor’s comments during summation went beyond the limits of propriety, in light of the overwhelming evidence of guilt, we hold that this error is harmless and that defendant was not deprived of a fair trial thereby.” The court applied the harmless error standard articulated in People v. Crimmins, finding that there was no reasonable possibility that the jury would have acquitted Morgan absent the prosecutor’s improper comments. The Court emphasized the importance of considering the entire context of the summation and the strength of the evidence in determining whether prosecutorial misconduct requires reversal. The order of the Appellate Division was reversed and the case was remitted to that court for consideration of the facts and issues not reached.

  • People v. Whalen, 59 N.Y.2d 273 (1983): Prosecutorial Misconduct and Alibi Evidence

    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.

  • People v. Wright, 54 N.Y.2d 821 (1981): Prosecutor’s Improper Summation and Curative Instructions

    People v. Wright, 54 N.Y.2d 821 (1981)

    A prosecutor’s summation that exceeds the bounds of proper argument, especially when implying threats or danger to a witness without factual basis, warrants curative instructions, and failure to provide such instructions constitutes reversible error.

    Summary

    The Court of Appeals reversed the Appellate Division’s order and mandated a new trial because the prosecutor, during summation, made improper remarks implying the victim would be “suicidal or foolish” to misidentify the defendant, suggesting potential harm without any supporting evidence. While the defendant’s objection was sustained, the trial court’s refusal to provide curative instructions to the jury to disregard the prosecutor’s unfounded comments was deemed reversible error. The Court also addressed the admissibility of a statement made by the defendant, finding sufficient evidence to connect the defendant to the statement for jury consideration.

    Facts

    The victim of a robbery identified the defendant as the perpetrator. During summation, the defense counsel argued that the victim may have been influenced by the police to misidentify the defendant. In response, the prosecutor stated the victim would be “suicidal or foolish” to misidentify the defendant, repeating this sentiment twice. No evidence suggested the defendant or associates had threatened the victim. The defense objected to the prosecutor’s remarks, which was sustained, but the court denied the request for curative instructions.

    Procedural History

    The defendant was convicted at trial. The defendant appealed, arguing that the prosecutor’s summation was improper and prejudicial and that the trial court erred by not giving curative instructions after sustaining the objection to the summation. The Appellate Division affirmed the conviction. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the prosecutor’s remarks during summation, implying potential danger to the victim if they misidentified the defendant, exceeded the bounds of proper argument and prejudiced the defendant.
    2. Whether the trial court’s refusal to provide curative instructions to the jury after sustaining an objection to the prosecutor’s improper remarks constituted reversible error.

    Holding

    1. Yes, because the prosecutor’s remarks lacked an evidentiary basis and implied a threat to the witness, exceeding the bounds of proper summation.
    2. Yes, because the defendant was entitled to have the jury instructed that the prosecutor’s remarks were unfounded, and improper, and should be disregarded. The court’s refusal to grant the defendant’s request for curative instructions constituted reversible error.

    Court’s Reasoning

    The Court of Appeals found that the prosecutor’s remarks suggesting the victim would be “suicidal or foolish” to misidentify the defendant were improper because they implied a threat or potential harm without any evidence to support such an inference. The Court noted that while a strong response to defense counsel’s argument was permissible, the prosecutor crossed the line by introducing the unsupported notion of danger to the witness. The Court emphasized the importance of curative instructions in mitigating the prejudicial effect of improper remarks, stating that the defendant was entitled to have the jury instructed that the prosecutor’s remarks were unfounded, improper, and should be disregarded. Citing People v. Ashwal, 39 NY2d 105, the Court held that the denial of such curative instructions constituted reversible error. The Court also addressed the admissibility of the defendant’s statement, distinguishing it from People v. Smith, 52 NY2d 802, by noting that there was sufficient evidence to connect the defendant with the statement, thus justifying its submission to the jury for consideration.

  • Tate v. Colabello, 58 N.Y.2d 84 (1983): Admissibility of Evolving Injury Descriptions in Personal Injury Cases

    Tate v. Colabello, 58 N.Y.2d 84 (1983)

    A supplemental bill of particulars in a personal injury case may include a more definitive statement of the sequelae of previously listed permanent injuries, provided the later statement is a reasonably foreseeable evolution of the original injuries and does not introduce a completely new injury.

    Summary

    Liza Tate, a 15-year-old, was struck by the defendant’s car and sustained injuries. The plaintiff presented a supplemental bill of particulars that included a description of an “asymmetrical looking chest,” stemming from the initial injuries. The defense argued this was a new injury not previously disclosed, and thus inadmissible. The Court of Appeals held that the supplemental bill was admissible because it described a foreseeable consequence of the original injuries, rather than a new, distinct injury, especially since the defense declined the plaintiff’s offer of a new physical examination. The court also addressed the propriety of the plaintiff’s attorney suggesting a total compensation amount during summation.

    Facts

    • 15-year-old Liza Tate was struck by the defendant’s motor vehicle.
    • The original bill of particulars listed a dislocation of the spine, a fractured clavicle, and resulting shoulder and clavicular “deformation” affecting the thoracic and spinal areas as permanent injuries.
    • A supplemental bill of particulars described stiffness and atrophy of the shoulder, muscle spasm, distortion of the clavicle, a lowered shoulder, and a “permanent cosmetic disfiguration” in the form of an “asymmetrical looking chest.”
    • The plaintiff offered a new physical examination when serving the supplemental bill, but the defendants declined.

    Procedural History

    • The trial court initially granted the defendant’s motion for a new trial after a jury verdict of $320,000 for the plaintiff.
    • The Appellate Division modified the order, reinstating the verdict on liability but ordering a new trial on damages unless the plaintiff consented to reduce the verdict to $150,000, which she did.
    • The defendants appealed to the Court of Appeals based on alleged errors of law during the trial.

    Issue(s)

    1. Whether the trial court committed reversible error by admitting evidence of the “asymmetrical looking chest” without the plaintiff first obtaining leave to include it in a supplemental bill of particulars.
    2. Whether the plaintiff’s counsel committed reversible error by suggesting a specific monetary amount for the plaintiff’s injuries during summation.
    3. Whether the plaintiff’s counsel’s reference to the plaintiff’s life expectancy and rhetorical questions about the value of pain over that time constituted an impermissible “per diem” argument.

    Holding

    1. No, because the “asymmetrical looking chest” was a reasonably foreseeable sequela of the injuries described in the original bill of particulars, not a new injury.
    2. No, because counsel is permitted to state the amount of damages demanded in the complaint to place before the jury the client’s contentions regarding compensation.
    3. No, because the counsel did not suggest a specific monetary value for units of time or multiply them for the jury.

    Court’s Reasoning

    The Court reasoned that the description of the “asymmetrical looking chest” was a more definitive statement of the already-listed permanent injuries. The court emphasized that it was a reasonably foreseeable development of the initial injuries, especially considering the dynamics of maturing injuries. The defendants were also offered a new physical examination to assess the updated condition, which they declined. Therefore, the court found no surprise or prejudice to the defendants.

    Regarding the summation, the court stated, “[I]t was counsel’s privilege ‘to place before the jury his client’s contentions in this regard’ and, to this end, he was ‘entitled to state the amount of damages demanded’.” The court also noted that the trial judge properly instructed the jury that the ultimate measure of damages was to be a sum that would justly and fairly compensate the plaintiff.

    Finally, the court distinguished the summation from an impermissible “per diem” argument, noting that the counsel suggested no specific monetary value for units of time and did not perform any multiplication to arrive at a total amount. Because a unit-of-time argument was not made, the court did not have the opportunity to rule on its propriety. The court affirmed the Appellate Division’s order.