People v. Casanova

• Decision Date: 03 July 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Lazaro CASANOVA, Also Known as Cuba, Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 976
988 N.Y.S.2d 713
2014 N.Y. Slip Op. 04978

The PEOPLE of the State of New York, Respondent,
v.
Lazaro CASANOVA, Also Known as Cuba, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 3, 2014.

[988 N.Y.S.2d 714]

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and DEVINE, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 30, 2012 in Albany County, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree.

In February 2012, defendant allegedly sold heroin to a male confidential informant (hereinafter CI) during a controlled buy overseen by police officers in the City of Albany. During two similar controlled buys conducted in March 2012, defendant also allegedly sold heroin to another CI, a female. Shortly thereafter, defendant was arrested, and officers found heroin hidden in his jacket. Defendant was charged by three indictments—subsequently joined for trial—with three counts of criminal sale of a controlled substance in the third degree and one count each of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. Following a jury trial, he was found guilty of two counts of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree. ¹ He

[988 N.Y.S.2d 715]

was sentenced as a second felony drug offender to an aggregate prison term of seven years, followed by three years of postrelease supervision. Defendant appeals.

The principal question on this appeal is whether various remarks made by the prosecutor during summation were so prejudicial in their cumulative effect that they operated to deny defendant his fundamental right to a fair trial. We are persuaded that they were and, although not all of defendant's challenges to the prosecutor's statements were preserved by appropriate objections, we exercise our interest of justice jurisdiction to take corrective action ( seeCPL 470.15[6][a]; People v. Forbes, 111 A.D.3d 1154, 1160, 975 N.Y.S.2d 490 n. 6 [2013];People v. Russell, 307 A.D.2d 385, 387, 761 N.Y.S.2d 400 [2003];People v. Skinner, 298 A.D.2d 625, 626, 747 N.Y.S.2d 857 [2002] ).

Counsel is afforded wide latitude in advocating for his or her case during summation, but “[t]here are certain well-defined limits” that may not be exceeded ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ). Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant ( see People v. Forbes, 111 A.D.3d at 1159, 975 N.Y.S.2d 490;People v. Diotte, 63 A.D.3d 1281, 1282–1283, 880 N.Y.S.2d 397 [2009];People v. Allen, 13 A.D.3d 892, 898, 787 N.Y.S.2d 417 [2004],lv. denied4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [2005] ). He described defense counsel's summation as “throwing mud,” which he characterized as something done by people who “don't have a reasonable excuse as to crimes that they've committed”—thus not only denigrating the theory of defense, but suggesting that it was defendant's affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. At this point, Supreme Court intervened sua sponte, admonishing the prosecutor that he was improperly shifting the burden of proof and that defendant had no obligation to present evidence proving his innocence. Undeterred, the prosecutor went on to suggest that defendant had been unable to establish that the male CI had a motive to lie, thereby improperly suggesting to the jury that defendant had an obligation to do so ( see People v. Levandowski, 8 A.D.3d 898, 900–901, 780 N.Y.S.2d 384 [2004] ). He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people “by sprinkling drugs on them.” Defense counsel objected that these comments were improper because, although he had argued that the police work was “sloppy,” he had made no claims of police conspiracies, dishonesty or other intentional misconduct, and we agree ( see People v. Forbes, 111 A.D.3d at 1159, 975 N.Y.S.2d 490). Further, as the court warned the prosecutor, the remarks improperly shifted the burden of proof and—by advising the jury that it would have to believe that police misconduct had occurred in order to...