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The defendant’s remaining claims are not preserved


The criminal defendant was convicted, after a jury trial, of sex abuse in the second degree and endangering the welfare of a child, both charges arising out of a single incident that allegedly occurred when the defendant took the complaining witness to see a movie.

As a preliminary matter, the County court reject the argument that the pertinent claims of prosecutorial misconduct are not preserved for appellate review. Under the particular circumstances, the defense counsel’s general objections to the prosecutor’s comments, and subsequent motion for a mistrial, preserved the claims.

With respect to the merits of the defendant’s claims, while the prosecutor has wide latitude to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide, such latitude does not permit an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all rhetorical devices at his command. There are certain well-defined limits. Moreover, the fundamental obligation of a prosecutor is to seek justice, and not merely obtain a conviction.

The prosecutor’s highly inflammatory remarks during summation were so prevalent that no curative instruction could have alleviated the prejudice created by the remarks. The prosecutor began his vitriolic summation by referring to the defendant as a predator. He went on to argue that the defendant had kept certain movie tickets that were introduced into evidence by the defense as a trophy from another night, a different outing with a different child. Despite the court’s having sustained defense counsel’s objection to the latter remark, the prosecutor continued to accuse the defendant of prior uncharged sex crimes with other children.

Accusations are patently improper and serve no purpose other than to invite the jury to convict the defendant on an alleged propensity to commit the type of crime charged.

On this record, the County court conclude that the cumulative effect of the prosecutor’s persistent and improper references to prior uncharged sex crimes both in summation and during his examination of witnesses deprived the defendant of his right to a fair trial. Moreover, in this case, when proof of the defendant’s guilt was not overwhelming but rather turned on the jury’s assessment of a single eyewitness, the County court cannot conclude that the prosecutor’s comments were harmless. Accordingly, the judgment of conviction is reversed and the matter remitted for a new trial.

The dissents agree with the majority that the issue of the prosecutor’s predator and trophy collection comments is preserved. The comments were inappropriate. Finally, dissents do not dispute that some of the comments in question, had they gone unaddressed by the trial court, might potentially have been prejudicial.

Nevertheless, the dissent disagrees with the majority as to the remedial power of the appropriate, and factually specific, curative instructions delivered by the trial court. The trial court told the jury that the defendant is on trial in this case charged with two crimes allegedly involving the complaining witness, which allegedly occurred during an incident at the Jamaica movie theater. Any suggestion during the prosecutor’s summation that there are any other victims or any other crimes committed by the defendant was highly improper. The arguments were highly improper and meant only to inflame the passions and were pure speculation.

After the court issued its curative instructions, the defense counsel did not raise any further objections. The curative instructions made it abundantly clear to the jury that there had been no proof that the defendant had actually committed any prior crimes, and pointedly conveyed to the jury both the prosecutor’s blameworthiness and the court’s displeasure with the prosecutor’s conduct. The instruction dispelled the potential prejudice.

The majority rely on the holding of the recent Court of Appeals case for the proposition that the cumulative effect of the prosecutor’s persistent and improper references to prior uncharged sex crimes both in summation and during his examination of witnesses deprived defendant of his right to a fair trial. The facts and circumstances this case are, however, entirely different from those of a similar.

In the case at bar, the trial court did not commit any error or allow any improper testimony. Quite the contrary, the trial court not only granted the defendant’s objection to the prosecutor’s attempt to imply that there were other uncharged crimes, but also gave very strong and factually specific curative instructions to the jury to the effect that there was no evidence to warrant the prosecutor’s even making the improper statements.

Moreover, unlike the prosecutor in a similar case, the prosecutor in this case did not persist in repeating claims of uncharged crimes again and again. The majority’s equating this case with the similar case is overreaching.

The majority also refers to the prosecutor’s persistent and improper references to prior uncharged sex crimes during his examination of witnesses and they find no pattern of improper examination that would warrant reversal. While it is true that the prosecutor asked the young victim’s mother a question that elicited a response to the effect that the defendant had, on prior occasions, invited other children to his house, the objective in posing the question was apparently only to clarify the mother’s somewhat confusing testimony. In any event, the trial court promptly and appropriately struck the mother’s response. The prosecutor also questioned the victim’s parents about whether the defendant had issued prior invitations to the victim that the victim’s parents had declined. The prosecutor’s questions were proper because the defendant’s issuance of prior invitations was relevant to the charged offense in that it tended to establish that the defendant was persistent in wanting to spend time with the victim. This, in turn, was particularly relevant because the defendant is a grown man and the victim is a young child. The prosecutor made no attempt to elicit testimony suggesting that anything untoward had occurred in connection with the prior invitations.

The majority’s assertion that proof of the defendant’s guilt was not overwhelming but rather turned on the jury’s assessment of a single eyewitness. In fact, the Court of Appeals stated that the case was an identification case that turned on the jury’s assessment of a single witness. In the case at bar, there was no issue concerning the identification of the defendant as the individual involved in the incident; hence, there was no issue as to the adequacy of one-witness identification testimony. The only question presented here was whether there was an improper touching of the victim by the defendant. This was simply an issue of credibility — whether the jury accepted the victim’s unequivocal statements or defendant’s sometimes equivocal statements. In substance, the victim asserted that the defendant tried to put his hand down the victim’s pants and the defendant asserted that this activity never occurred. The proof of the defendant’s guilt is overwhelming.

In an identification case, the circumstances of the crime are uncontested and the sole issue is the involvement of the defendant. In this case, the opposite is true. Consequently, the County court would sustain the ruling of the trial court.

The defendant’s remaining claims are not preserved, because the defense counsel did not request further relief after the court sustained its objections or delivered curative instructions, and would decline to reach them in the interest of justice.

Women and children are the often victims of sexual abuse because of their vulnerability. If you want assistance in exploring your legal options to win your courtroom battle, approach the Queens County Sex Crime Lawyer together with the Queens County Criminal Attorney from Stephen Bilkis and Associates.

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