How not to sum up on a caseMarch 25, 2017

People v Casiano, 2017 NY Slip Op 02053 (2d Dept. 2017)

“The defendant correctly asserts that the cumulative effect of the prosecutor’s improper comments during summation requires a new trial. “[I]n summing up to the jury, [the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v Bartolomeo, 126 AD2d 375, 390, quoting People v Ashwal, 39 NY2d 105, 109). Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that “the witnesses who came before you provided truthful testimony that makes sense,” that they gave the “kind of truthful and credible testimony that you can rely on,” and that one witness had “no reason . . . to be anything but truthful with the 911 operator” (see People v Redd, 141 AD3d 546, [*2]548; People v Spence, 92 AD3d 905, 905-906; People v Brown, 26 AD3d 392, 393). In describing a complainant, the prosecutor asserted that he was “exactly what you hoped to see from someone who had troubles with the law in their youth,” but had “changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,” which was a clear attempt to appeal to the sympathy of the jury (see People v Smith, 288 AD2d 496, 497; see also People v Anderson, 83 AD3d 854, 856). To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced (see People v Carter, 40 NY2d 933, 934; People v Morgan, 111 AD3d 1254, 1256). Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a “saint” for answering so many questions (see generally People v Brisco, 145 AD3d 1028; People v Baum, 54 AD3d 605, 606). Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 (see People v De George, 73 NY2d 614, 618). The cumulative effect of these improper comments deprived the defendant of a fair trial (see People v Calabria, 94 NY2d 519, 522; People v Crimmins, 36 NY2d 230, 237-238; People v Spann, 82 AD3d 1013, 1015).”

**Just read this.  When you hear this type of inflammatory remarks at your next jury trial, object and ask for a mistrial.  This is truly a primer of what NOT to do.

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