People v. Goldstein
| Decision Date | 17 July 2003 |
| Citation | 196 Misc.2d 741,763 N.Y.S.2d 390 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ALVIN GOLDSTEIN, Appellant. |
| Court | New York Supreme Court |
196 Misc.2d 741
763 N.Y.S.2d 390
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
ALVIN GOLDSTEIN, Appellant.
July 17, 2003.
[196 Misc.2d 742]
Charles C. DeStefano, Staten Island, Fredy H. Kaplan, Brooklyn, and Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, New York City (Herald Price Fahringer, Erica T. Dubno and Nicole Neckles of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Shulamit Rosenblum of counsel), for plaintiff.
PESCE, P.J., ARONIN and GOLIA, JJ., concur.
[196 Misc.2d 743]
OPINION OF THE COURTMEMORANDUM.
Judgment of conviction unanimously reversed upon the law and matter remanded for a new trial.
Defendant is the publisher of Screw magazine, an adult publication, and an adult-content public-access cable television show, "Midnight Blue." The complainant was, for some 11 weeks, his personal assistant. It is alleged that after the complainant left defendant's employ, he made threatening and harassing telephone calls and mailed copies of Screw editorials and "Midnight Blue" segments to her. Defendant was charged with aggravated harassment in the second degree (Penal Law § 240.30 [1], [2]) and harassment in the second degree (Penal Law § 240.26 [1], [3]), stemming from incidents occurring between May 22, 2001 and June 23, 2001. Defendant was convicted of 5 of the 12 counts with which he was charged.
Defendant's conviction must be reversed because the prosecutor's remarks in summation exceeded the bounds of propriety and fair response to the defense, and the cumulative effect of these remarks deprived defendant of a fair trial (People v Smith, 288 AD2d 496 [2001]; People v Ortiz, 125 AD2d 502 [1986]). Although some of the statements at issue on this appeal were made without objection, and thus not preserved as a matter of law (see CPL 470.05), under the circumstances, review in the exercise of this court's discretion is warranted. While it is the right of counsel in summation, defense and prosecution alike, "to comment upon every pertinent matter of fact bearing upon the questions the jury [has] to decide" and to do so with the widest latitude, "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" (People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation marks omitted]). This is particularly so because the prosecutor's mission is not necessarily to convict, but rather to achieve a just result (People v Bailey, 58 NY2d 272, 277 [1983]; People v Zimmer, 51 NY2d 390, 393 [1980]).
In the present case, the prosecutor, without any attempt to temper his language, improperly stated on a number of occasions that defendant had lied about various matters (see People v Martin, 172 AD2d 268 [1991]; People v Hudson, 104 AD2d 157 [1984]; People v Dowdell, 88 AD2d 239 [1982]). The defense's summation had questioned the complainant's credibility and had argued that certain of her testimony should not
[196 Misc.2d 744]
be believed or credited, but had not accused her of lying or of being a liar. There was nothing in the defense summation that could be said to have provoked the prosecutor's extreme and persistent mode of discourse (cf. People v Galloway, 54 NY2d 396 [1981]). In direct contrast to his characterization of defendant, on several occasions the prosecutor vouched for the complainant, flatly stating that she had "told the truth, unlike defendant," that "she's not lying" or had "no motive" to lie about various items of testimony (see People v Clark, 120 AD2d 542, 544 [1986]; People v Dowdell, 88 AD2d at 248).
While a prosecutor is "clearly entitled to respond by arguing that the witness[] had, in fact, been credible" (People v Overlee, 236 AD2d 133, 144 [1997]), and certain of the prosecutor's remarks served that proper purpose, others went beyond any permissible and fair argument that the complainant had testified truthfully (see People v Overlee, 236 AD2d 133 [1997], supra; People v Salaman, 231 AD2d 464 [1996]). Indeed...
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...... mailing non-threatening religious and political materials to Jane Hoffman, then a candidate for New York State Lieutenant Governor, and other "people of the Jewish faith." Vives, 305 F.Supp.2d at 294. Vives stated that he sent these materials "with the intent to alarm the recipients about current ... See, e.g., People v. Goldstein, 196 Misc.2d 741, 747-48, 763 N.Y.S.2d 390 (N.Y.App. Term 2003); People v. Cooper, 4 Misc.3d 788, 792-94, 781 N.Y.S.2d 201 (Nassau County ......
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Vives v. City of New York
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