People v. Hess

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before PINE
• Citation: People v. Hess, 653 N.Y.S.2d 216, 234 A.D.2d 925 (N.Y. App. Div. 1996)
• Decision Date: 30 December 1996
• Parties: PEOPLE of the State of New York, Respondent, v. Jeffrey HESS, Appellant.

Page 216

653 N.Y.S.2d 216

234 A.D.2d 925

PEOPLE of the State of New York, Respondent, v. Jeffrey HESS, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Sean Dennis Hill, Buffalo, for Appellant.

Kevin M. Dillon by Joseph Notaro, Buffalo, for Respondent.

Before PINE, J.P., and FALLON, WESLEY, DAVIS and BOEHM, JJ.

MEMORANDUM.

On appeal from a judgment convicting him upon a jury verdict of rape in the first degree, assault in the second degree, endangering the welfare of a child, assault in the third degree (three counts), intimidation of a witness in the third degree, criminal trespass in the second degree, and criminal contempt in the second degree, defendant contends that he was deprived of a fair trial by prosecutorial misconduct. By failing to object to most of the statements by the prosecutor that are now alleged to constitute misconduct, defendant failed to preserve for our review his contentions with respect to those statements (see, CPL 470.05[2]; People v. Jacobs, 225 A.D.2d 1088, 639 N.Y.S.2d 194, lv. denied 88 N.Y.2d 880, 645 N.Y.S.2d 454, 668 N.E.2d 425). In those instances in which defendant objected to the alleged misconduct, and in one instance in which defendant did not object, "the trial court took appropriate steps to dilute its effect" (People v. Curley, 159 A.D.2d 969, 970, 552 N.Y.S.2d 768, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191). Although we do not condone the prosecutor's statements, "we find that the Judge's firm control over the trial obviated any prejudice to defendant that might have resulted from the Prosecutor's misconduct" (People v. Christopher, 170 A.D.2d 1020, 1021, 566 N.Y.S.2d 167, lv. denied 78 N.Y.2d 921, 573 N.Y.S.2d 473, 577 N.E.2d 1065).

Prosecutorial misconduct warrants reversal " 'only when the conduct has caused such substantial prejudice to the defendant that he has been denied due process of law' " (People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, quoting People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307). Defendant admitted the facts underlying the three charges of assault in the third degree, the charge of intimidating a witness, and the charge of criminal contempt. Defendant admitted having hit the victim on other occasions, having grabbed her breast, and having threatened to burn her with a cigarette. Defendant also changed some aspects of his testimony on cross-examination. Defendant nevertheless contended that the sexual intercourse underlying the charge of first degree rape was consensual, and that he did not commit the crime of second degree assault at that time. In light of the corrective measures taken by Supreme Court, the alleged prosecutorial misconduct would not have affected the jury's resolution of the credibility issue against defendant on the rape and second degree assault charges.

We further reject the contention that counsel was ineffective. Defendant received meaningful representation (see, People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Carr, 234 A.D.2d 951, 651 N.Y.S.2d 770 [decided herewith] ).

Judgment affirmed.

All concur except FALLON and BOEHM, JJ., who dissent and vote to reverse in the following Memorandum:

We respectfully dissent. The blatant and repeated disregard by the prosecutor of Supreme Court's rulings and the manner in which the prosecutor infected the trial by the introduction of impermissible and highly prejudicial matters represent such examples of prosecutorial misconduct that we should not permit this verdict to stand.

The prosecutor repeatedly asked defendant in cross-examination whether various prosecution witnesses, including defendant's children, had lied in their testimony. Such cross-examination covered at least 23 pages of the trial transcript, and its impropriety is well established.

"While we affirm this judgment of conviction, we write again to condemn, as forcefully as possible, prosecutorial cross-examination which compels a defendant to state that the police or other witnesses lied in their testimony. In light of the vast number of published judicial decisions criticizing this prosecutorial tactic, it is inconceivable that any prosecutor would be unaware of the impropriety of such conduct. If he is, he fails shamefully in the performance of his public function, as does a superior charged with his training; if he is not, but nevertheless pursues such a course, his conduct raises serious ethical concerns."

(People v. Montgomery, 103 A.D.2d 622, 481 N.Y.S.2d 532).

The prosecutor improperly included in his cross-examination questions relating to uncharged incidents involving drugs. The court had previously precluded questioning regarding marihuana in the Sandoval/Ventimiglia hearings. Notwithstanding that ruling, the prosecutor suggested to defendant that he got money by selling marihuana, that he got money by selling cocaine, that he got money by selling "hash", and that he got money by selling "acid". Defense counsel objected and the objection was sustained and the testimony stricken. At no time in the extensive Sandoval hearing was there any mention of drugs other than marihuana, nor did the prosecutor even argue that there was a good faith basis for such questions or comply with CPL 240.43, which alone is ground for reversal (see, People v. Beasley, 184 A.D.2d 1003, 584 N.Y.S.2d 682; People v. Heath, 175 A.D.2d 562, 572 N.Y.S.2d 228).

Not satisfied by those improprieties, the prosecutor in his cross-examination of defendant was intemperate, sarcastic, insulting and contemptuous (see, People v. Beckford, 138 A.D.2d 613, 526 N.Y.S.2d 197; People v. Grice, 100 A.D.2d 419, 474 N.Y.S.2d 152; People v. Mott, 94 A.D.2d 415, 465 N.Y.S.2d 307).

There were other improprieties as well. In questioning the victim about an assault alleged to have occurred on January 5, 1992, charged in the sixth count of the indictment, the prosecutor asked if defendant had a shotgun "at that point". When defense counsel objected, the prosecutor said, "It's part and parcel of the incident, Your...