People v. Jackson

143 A.D.2d 363, 532 N.Y.S.2d 303, 1988 N.Y. App. Div. LEXIS 9186

Opinions

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered October 14, 1986, convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

While many of the errors complained of were not objected to at the trial, we nevertheless feel compelled, under the circumstances of this case, to reach them in the interest of justice and to reverse (People v Ortiz, 125 AD2d 502; People v Hamilton, 121 AD2d 176).

The prosecutor attempted to denigrate the defendant’s testimony by stating that the defendant’s version of the facts was a fabrication concocted after hearing the People’s witnesses; by stating on some 10 separate occasions that defense counsel’s summation was intended to cloud the issues; by contending that the "whole cloud which was painted is a joke” which he (the prosecutor) was going to try to clean; and by claiming that defense counsel had tried to draw attention away from the real issues by his "talking softly”, "friendly attitude”, and "nice mannerism”, just "like in the movies”. We conclude that under the circumstances, the defendant was unduly prejudiced by the prosecutor’s action.

It was improper for the prosecutor to attack a defendant’s testimony on the grounds that he had fabricated his case after hearing the People’s witnesses (see, People v Bolden, 82 AD2d 757); it was improper for the prosecutor to label the defense argument as a "cloud” and cast himself as the guardian of truth ("Before you note it, it’s so cloudy I’m going to try to clean it”) (see, People v Torres, 111 AD2d 885); and it was improper for the prosecutor to denigrate his adversary’s personal attributes (see, People v Butler, 67 AD2d 950).

Moreover, the court’s failure to charge the jury on the limited purpose for which prior convictions could be considered is error (see, People v Williams, 112 AD2d 177; People v Moorer, 77 AD2d 575).

With reference to the People’s contention that taken individually, these are harmless errors, we note that sufficient harmless errors must ultimately be deemed harmful (People v Rosa, 108 AD2d 531). Brown, J. P., Lawrence and Balletta, JJ., concur.