People v. Thompson

161 A.D.2d 236, 1990 N.Y. App. Div. LEXIS 5200, 555 N.Y.S.2d 266

Opinions

Motion granted to extent of recalling and vacating this court’s order (158 AD2d 261) and accompanying memorandum decision, and substituting a new order and memorandum decision, which follows:

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered April 26, 1988, upon indictment No. 8213/87, convicting defendant, after a jury trial, of assault in the second degree (Penal Law § 120.05 [2]) and sentencing him to an indeterminate term of imprisonment of from l½ to 4½ years, is reversed, on the law, and as a matter of discretion in the interest of justice, and the case remanded for a new trial; and the judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered April 26, 1988, upon indictment No. 11708/87, convicting defendant, upon a plea of guilty, of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05) and sentencing him to an indeterminate term of imprisonment of IV2 to AV2 years, to run concurrently with the sentence imposed upon the first indictment, is vacated, and the matter remanded for further proceedings.

The essential facts are as follows:

At approximately 1:00 a.m. on September 3, 1987, defendant encountered the complainant, Lisa Cullen, on St. Mark’s Place in Manhattan. Cullen, who was an acquaintance of defendant, angrily confronted him about $5 which she and a friend had given him to procure "pot” for them a month earlier. Cullen accused defendant of having neither returned with the marihuana nor refunded the money. Defendant denied the accusation, claiming that he had in fact returned, but had been unable to find Cullen.

Immediately prior to being stopped on the street by Cullen, defendant had been riding a bicycle with his dog, a pit bullterrier, leashed at his side. As the disagreement escalated, Cullen became so enraged that she picked up defendant’s bicycle, which he had dismounted and left at the curb, and threw it into the street.

There was conflicting evidence as to the exact point in the dispute when the dog, agitated by the commotion and shouting, lunged at Cullen and began to bite her foot. The assault charge brought against defendant was predicated on the theory that he had deliberately loosened the leash to enable the dog to reach Cullen. Both Cullen and a second prosecution witness, Angela Wendt, testified to that effect, but their versions of the incident conflicted, with Wendt stating that Cullen had thrown the bicycle after an initial attack by the dog, which precipitated defendant’s releasing the dog to lunge a second time. Cullen, on the other hand, had testified to solely one attack, which came after she had thrown the bicycle.

Testifying in his own behalf, defendant denied any intentional action, claiming, instead, that the dog had seized Cullen’s foot when defendant moved to retrieve his bicycle as Cullen was coming back to the sidewalk after throwing it.

While this case presents little more than a credibility contest centering on whether defendant intentionally permitted the dog to attack Cullen, an examination of the record persuades us that the prosecutor’s summation was so highly inflammatory and interspersed with improper commentary and invective as to have unduly prejudiced defendant and denied him a fair trial. (See, People v Ashwal, 39 NY2d 105.)

After a pro forma greeting, the prosecutor began his summation as follows: "On the morning of September 3rd, 1987 the defendant * * * Henry Thompson committed an act so outrageous, so cowardly, so contemptible as to shock the sensibilities of any reasonable person following the standards of conduct being acceptable in the twenty-first century [sic] [In] retaliation for an attack upon a piece of metal shaped in the form of a bicycle, this defendant sent a dog, an animal bred over centuries to be a fighting machine, hurling at a defenseless 120 pound woman. This animal, this pit bull terrier, carrying out the desires of its owner, used its sharp teeth, its vise-like jaw, its imperviousness to pain to sink its teeth into heavy combat boots and to imbed its teeth into the flesh of Lisa Cullen. That [the] dog which drilled its way into Lisa Cullen’s leg was a dangerous instrument is beyond question.”

The prosecutor’s closing statement progressed in this manner as he, describing the attack and doubling the duration of time estimated by the witnesses, intoned:

"The dog began to chew at her leg, chewing, chewing * * * the defendant standing, watching * * * from half a minute to a minute. * * * The defendant watched as the dog gnawed, chewed, working its way through heavy combat boots * * * imbed its teeth in her flesh. * * *

"A minute [to] watch a dog chew at someone’s leg is a very long time. Just imagine a stop watch, a minute. A dog begins to chew the woman’s leg. It goes on. The defendant watches. The dog chews. The defendant watches. Chews, chews. The defendant watches. It goes on. Lisa Cullen screams, crawls.” The inflammatory rhetoric escalated as the summation continued, with the prosecutor ultimately resorting to gruesome analogies: "If he had taken something of hers and thrown it to the ground and damaged it, he wouldn’t be here. You are here because he did something absolutely outrageous, because he took a dog that he knew was capable of gnawing that woman’s leg off and set it on her in response to what she did. That was absolutely unreasonable, absolutely inappropriate. It was no different than if he pulled out a gun and shot her in the leg. No different if he got a club and beat her or got an ax and started hacking at her leg. It was outrageous and inappropriate. And, finally, it was criminal.”

Nor were the prosecutorial improprieties limited to dramatic expressions of pain and brutality. The closing statement also mischaracterized the defense by accusing defense counsel of claiming, "in an oblique way”, that defendant was "justified” in "set[ting] a pit bull terrier on a woman”. When defense counsel objected to this comment, as he had on several occasions throughout the prosecutor’s summation, an apparently incredulous court responded, "You’re saying that’s the defendant’s position?” Although the defense objection was sustained and a curative instruction was given, the prosecutor persisted in this vein, telling the jury that, "It’s not oblique, ladies and gentlemen, the suggestion to you that somehow Lisa Cullen got what she deserved” and adding that this was "the only issue in the case, the only question that you have when you go into that jury room”.

In the face of this record, we are compelled to reiterate that "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits. * * *

"Above all [counsel] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant” (People v Ashwal, supra, at 109-110).

The repeated "appeals] to passion and sentiment” and the other "myriad of improper comments” which comprised the prosecutor’s summation in the matter before us served to deprive defendant of a fair trial. (People v Hansen, 141 AD2d 417, 419, 420; see, People v Dunlap, 138 AD2d 393; People v Rudd, 125 AD2d 422, 425-426.)

Accordingly, the judgment rendered upon indictment No. 8213/87 is reversed and a new trial is directed. The judgment rendered upon indictment No. 11708/87 is reversed, on consent, as having been induced by the promise of concurrent sentencing. (See, People v Fuggazzatto, 62 NY2d 862, 863.) We have considered the balance of defendant’s arguments on appeal, and find them to be without merit. Concur—Ross, J. P., Milonas and Kassal, JJ.