People v. Moye

52 A.D.3d 1, 857 N.Y.S.2d 126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2008
• Status: Published

Opinions

OPINION OF THE COURT

Catterson, J.

In this case, we vacate a conviction and remand for a new trial because the prosecutor’s conduct at trial amounted to an egregious violation of the unsworn witness rule. The form and substance of the prosecutor’s summation whereby he injected himself, his pretrial conduct and his credibility into the proceedings were highly prejudicial to the defendant, and constituted prosecutorial misconduct that the trial judge impermissibly allowed over objection. We do not agree with the dissent’s viewpoint, characterizing the People’s summation as a “vigorous” response to defense counsel’s closing argument. This is not a case about the limits that should be set on prosecutorial response to a defendant’s aggressive, or even, egregious summation. This is a case where the People created the situation by eliciting conflicting testimony from their own witnesses, and then attempted to correct the situation at sidebar by vouching to the court for the witness whose testimony was more likely to secure them a conviction. After the court denied a mistrial, defense counsel properly pointed to the conflicting testimony, and suggested that the police officer witness had lied with the prosecutor’s complicity. Moreover, this was defendant’s second trial on a single count of criminal possession of a controlled substance in the third degree. The first attempt by the same prosecutor, Assistant District Attorney (ADA) Chao, to convict the defendant resulted in a mistrial, as the jury was unable to reach a verdict. During the first trial, defense counsel impeached photographs introduced by the prosecution, which purported to depict the position of the defendant’s car on West 118th Street as it was claimed to have been observed during a nighttime rooftop surveillance. Defense counsel asserted that the photographs clearly demonstrated that, from their vantage point, observing police officers could not have seen the defendant’s hand extend from his car, and so they could not have viewed the defendant handing over drugs to codefendant Mumford.

After members of a backup team reached the scene, they arrested Mumford and the defendant, who was standing next to the car. The car was searched, and it was discovered that the airbag had been removed from the passenger side of the vehicle. In the cavity created from its removal, four packets of marijuana were found. In the car and defendant’s pockets, more than $1,000 in cash was found.

After the case was sent to the jury, a mistrial was declared when the jury could not agree on a verdict. By the time of the retrial, the prosecution had obtained new photographs in a recreation of the drug arrest purporting to show Officer Jeselson’s vantage point from his observation post. The part of the defendant was played by a second police officer parked in the spot where the defendant’s car allegedly was parked.on the night of the crime, and the officer extended his hand from the vehicle, apparently to establish that the hand was visible from the observation post.

Testimony at the retrial established that the photographs were taken by an employee of the District Attorney’s office, Laura Badger, in the presence of Assistant District Attorney Chao, Officer Jeselson, and another officer.

Notably, during the retrial, Officer Jeselson testified that his fellow officer’s hand was visible from the observation post. Badger testified differently. She said that Officer Jeselson advised the driver of the police car to move the car to a different position after it was, initially, impossible to see the second officer’s hand from the observation post.

During a sidebar, the prosecutor had “no explanation” for Ms. Badger’s testimony other than that she was mistaken. The prosecutor claimed to be as surprised as anyone else by the testimony.

During summation, defense counsel accused Officer Jeselson of perjury. Referring to Ms. Badger, defense counsel stated: “We know who Ms. Badger is. Ms. Badger is their expert. She works for Mr. Morgenthau. She told you Mr. Morgenthau expects a high level of integrity from the people who work for him. Very important because Mr. Morgenthau has a great level of integrity.”

After discussing Ms. Badger’s testimony, defense counsel again stated that someone was committing perjury, and then added:

“[The prosecutor] Mr. Chao will tell you this. Those are gross inconsistencies . . .

“Defense calls witnesses and they lie, the prosecution calls it perjury. When the prosecution calls witnesses that lie they call it inconsistencies . . .

“Mr. Chao tried to get back up and straighten it out. He knew what was going on. He had to fix it. He was there, wasn’t he? According to Ms. Badger, according to Officer Jeselson standing right there. The case is going down the drain. So what does he do? He doesn’t throw the towel in, no. He gets up.”

*

Defense counsel went on to suggest that the prosecutor, during his redirect, tried to throw Ms. Badger a signal that she had made a mistake, and that she wasn’t supposed to say that, but Ms. Badger did not react to the signal.

In his summation, the prosecutor responded that Officer Jeselson had no opportunity to frame the defendant, because his acts during the re-creation at the observation post were being witnessed by an assistant district attorney. ADA Chao argued:

“[Defense counsel] spoke about people on that roof. It’s in evidence. Officer Jeselson was on that roof, the photographer Laura Badger was on the roof, and I was on that roof. Now, if he is directing something improperly, that is Officer Jeselson, well, it’s in front of me.

“And if he knew he was going to get away with it when I say that’s the opportunity, you know [defense counsel] talked about a lot of people losing their jobs about perjuring themselves, about the integrity of Robert Morgenthau’s office. Well, if Officer Jeselson thought he was going to get away with it—

“[defense counsel]: Mr. Chao is vouching for his witness.

“the court: Overruled. . . .

“[ada] chao: If Officer Jeselson thought he was going to get away with it with me present, all that talk about firing, that should be me because I’m prosecuting this case, not Officer Jeselson.

“[defense counsel]: That’s objectionable vouching for his witness.

“the court: Overruled.

“[defense counsel]: Your Honor, he is making himself an unsworn witness for the credibility of his police officer.

“the court: Overruled.

“[ada] chao: Ladies and gentlemen, Mr. Morgenthau should fire me if Officer Jeselson thinks he is going to be able to say that in court, lie to you, when the person who is standing right next to him on that roof is me. Well, that lies with me.

“So what’s the explanation? If there’s no motive, no opportunity for why Ms. Badger remembers it differently. Well, there’s evidence that you heard the officer was on the roof. Evidence that you heard I was on the roof also. I have no other answer other than the fact that she is mistaken. . . .

“[defense counsel]: He is vouching for his witness using the pronoun I.

“the court: Members of the jury, you can accept his argument as to what happened on the roof. It’s his argument based upon the evidence as he recalls it.”

After the trial concluded, the defendant moved to set aside the verdict based upon prosecutorial misconduct. The court denied the motion. The court noted that, “[vjiewed in a vacuum,” the prosecutor’s comments were objectionable, but viewed as a response to defense counsel’s inappropriate summation, they did not rise to the level of reversible error.

On appeal, the defendant rightly contends that the prosecutor improperly vouched for his witness and interjected his personal integrity and the veracity of the District Attorney’s office into his summation to support the credibility of Police Officer Jeselson.

It is well settled law that a prosecutor may not act as an unsworn witness and support the People’s case with his or her own veracity and position. (People v Lovello, 1 NY2d 436 [1956].) Indeed, the prosecutor in Lovello may well have served as a role model for the prosecutor in this case; albeit a role that should not have been imitated. In that case, the prosecutor attempted to convince the jury that the defendant had made a self-accusatory statement to a police officer and to himself when defense counsel, in his summation, criticized the prosecutor for failing to produce the stenographic minutes even though a stenographer had been present. The prosecutor stated to the jury: “with all the sincerity at my command, I say to you that if that conversation did not take place . . . then I am an aider and abetter to [the police officer’s] perjury.” (Id. at 438-439.)

A reading of the excerpted text from the People’s summation clearly illustrates that this was what the prosecutor did in this case, except to a more egregious degree. In this case, where two witnesses, both appearing for the prosecution, offered conflicting, contradictory statements about what had happened during the taking of photographs from the observation post, it was obviously defense counsel’s duty to draw attention to the inconsistencies. Moreover, defense counsel correctly suggested that, because only one of the statements could be true, one of the witnesses was possibly committing perjury. Further, knowing that the same issue of whether Police Officer Jeselson was in a position to witness the defendant handing the codefendant drugs in exchange for money had led to a mistrial the first time around, it was entirely reasonable for defense counsel to suggest that if peijury was being committed then the police officer had more to gain from it. In turn, this placed the prosecutor at center stage, since he was one of the parties present at the photographic session.

The prosecutor did not deny this. Indeed, he responded to defendant’s comments by noting that any impropriety which purportedly occurred during this incident necessarily occurred in front of him, given his presence, but that his very presence made any impropriety unlikely. He also suggested that if he were to prosecute a case, where that type of misconduct had taken place, he should be fired. Further, the prosecutor said he had no explanation for the discrepancy, other than that Badger was mistaken.

On appeal, the People concede that the prosecutor vouched for Officer Jeselson, and that there are virtually no cases in which summation remarks, like those in this case, are made by an assistant district attorney. Nevertheless, the People argue that the prosecutor’s summation was a necessary response to “a very personal defense attack” and that the prosecutor could not just “roll over” without reply.

Reliance on People v Marks (6 NY2d 67 [1959], cert denied 362 US 912 [1960]), however, would be inapposite. There, the defense counsel injected the reputations of the Assistant District Attorney, the District Attorney’s office, and the police into the case, having made gratuitous blanket attacks upon the law enforcement authorities. In that case, the Court found that defense counsel had told the jury that prosecution witnesses had been suborned by the District Attorney’s office acting with the police, by coercing them into giving false testimony implicating the defendant by threatening them that drugs would be withheld from them, or furnished to them, according to whether they testified as the People wanted. (Id. at 77.)

The Court of Appeals noted that the prosecutor’s reply had to be viewed in the context of that summation. Having made the attacks he did, the Court held that defendant was not in a position to complain that the prosecuting officer said that his reputation and the reputation of the police were involved in the case. The Court found that what the Assistant District Attorney said in reply may not have been perfect, but under these circumstances it was not unduly prejudicial.

Marks is easily distinguishable. In this case, Officer Jeselson’s credibility was at the crux of the case against the defendant since it was his testimony that established the defendant as Mumford’s accomplice. Officer Jeselson moreover testified that he had witnessed a hand-to-hand exchange between the defendant and Mumford. The visibility of the exchange was crucial to the People’s case, particularly since that was the issue that had prompted a mistrial in the first trial.

Likewise, People v Ortiz (54 NY2d 288 [1981]) is distinguishable. In that case, the voluntariness of a defendant’s statement to the prosecutor was an issue, but there was no reversible error when the court allowed the prosecutor to inject his pretrial conduct and credibility into the trial because no claim had been made that it was the prosecutor who had engaged in any coercion. Ortiz stands for the proposition that where.a prosecutor has, in effect, become an unsworn witness and injected his or her credibility into the proceedings by virtue of the admission into evidence of the prosecutor’s pretrial conduct, “no reversible error will be ascribed where such conduct does not become an actual issue at trial or otherwise result in a substantial likelihood of prejudice to the defendant.” (People v Bendell, 111 AD2d 87, 90 [1985, Murphy, EJ., dissenting], revd on dissenting mem of Murphy P.J., 67 NY2d 724 [1986].)

In this case, it is indisputable that where the credibility of the witnesses was an issue for the jury, the prosecutor vouched for the witness with the most favorable testimony for the prosecution by reference to his own pretrial conduct and by reference to his own credibility by virtue of his position in the District Attorney’s office, and thus he became an unsworn witness, and that error was harmful. In People v Paperno (54 NY2d 294, 301 [1981]), the Court of Appeals explained the rationale for limiting such conduct by stating that it amounted to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. The Court saw the “possible danger” that the jury, impressed by the prestige of the District Attorney’s office, “will accord great weight to the beliefs and opinions of the prosecutor.” (Id.; see also People v Blake, 139 AD2d 110, 114 [1st Dept 1988].)

In this case, the issue that caused the mistrial was also the issue at the heart of the conflicting testimonies in the second trial which the prosecutor attempted to resolve in the People’s favor by his unsworn testimony. Thus, to allow those statements to be heard by the jury constituted reversible error. Furthermore, the trial court erred in stating to the jury, “you can accept [the prosecutor’s] argument as to what happened on the roof. It’s his argument based upon the evidence as he recalls it.” Essentially, the trial court gave its imprimatur to the prosecutor as unsworn witness. This was indisputably and highly prejudicial to the defendant in a close case.

Accordingly, the judgment of the Supreme Court, New York County (John A.K. Bradley, J.), rendered June 16, 2004, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and sentencing him, as a second felony offender, to an indeterminate prison term of 4V2 to 9 years should be reversed, on the law, the judgment vacated and the matter remanded for a new trial.

The reference about “getting up” was to the prosecutor’s attempt to rehabilitate Ms. Badger on redirect.