People v. McCormick

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before HANCOCK; All concur, except GREEN
• Citation: People v. McCormick, 473 N.Y.S.2d 622, 100 A.D.2d 723 (N.Y. App. Div. 1984)
• Decision Date: 06 March 1984
• Parties: PEOPLE of the State of New York, Respondent, v. Eva McCORMICK, Appellant.

Page 622

473 N.Y.S.2d 622

100 A.D.2d 723

PEOPLE of the State of New York, Respondent, v. Eva McCORMICK, Appellant.

Supreme Court, Appellate Division Fourth Department.

March 6, 1984.

Gerald T. Barth, by James M. Dungan, Syracuse, for appellant.

Richard Hennessy by Michael Marmor, Syracuse, for respondent.

Before HANCOCK, J.P., and DENMAN, BOOMER, GREEN and MOULE, JJ.

MEMORANDUM.

Defendant's principal contention on appeal is that she was denied a fair trial because of the cumulative impact of prosecutorial misconduct (see, e.g., People v. Balkum, 94 A.D.2d 933, 464 N.Y.S.2d 63; People v. Mott, 94 A.D.2d 415, 418-419, 465 N.Y.S.2d 307). Defendant bases this contention on the following grounds: the prosecutor's attempts to force her to characterize the People's witnesses as liars; the prosecutor's questioning of her regarding prior bad acts; and the prosecutor's summation.

The prosecutor's conduct in repeatedly attempting to force defendant to characterize the People's witnesses as liars was clearly improper (see, e.g., People v. Bailey, 58 N.Y.2d 272, 460 N.Y.S.2d 912, 447 N.E.2d 1273), but prejudice was minimized by defense counsel's objecting to every one of these improper attempts and the trial court's sustaining of each objection. Additionally, since counsel failed either to request curative instructions or to move for mistrial, the issue has not been preserved for review (People v. Weston, 56 N.Y.2d 844, 846, 453 N.Y.S.2d 167, 438 N.E.2d 873). Indeed, defense counsel's failure to do so, particularly since he later moved for a mistrial on another ground, indicates that he did not believe these attempted questions seriously prejudiced his case.

Similarly, the prosecutor's questioning of defendant concerning bad acts which defendant failed to raise at the Sandoval hearing did not deny defendant a fair trial. Here, the prosecutor questioned defendant about an alleged assault which had not been ruled on at a prior Sandoval hearing. Defense counsel objected and a new hearing was held outside the presence of the jury. After the court ruled the assault inadmissible, the jury was reconvened and the prosecutor immediately questioned defendant about an alleged stabbing incident. Defense counsel again objected, the jury was again excused and another hearing was conducted. The court disallowed the stabbing incident and asked the prosecutor if he intended to question defendant concerning any other acts which had not been previously raised at the Sandoval hearing. The prosecutor then brought out two other incidents which were ruled on by the court. While it concededly would have been preferable for the prosecutor to have requested an advance ruling concerning these acts (see People v. Ventimiglia, 52 N.Y.2d 350, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59), the burden of obtaining such an advance ruling rests with defendant (People v. Sandoval, 34 N.Y.2d 371, 378, 357 N.Y.S.2d 849, 314 N.E.2d 413; People v. Otero, 75 A.D.2d 168, 428 N.Y.S.2d 965). Any prejudice stemming from the prosecutor's asking about acts which were subsequently ruled inadmissible can, hence, be attributed to defendant's failure to obtain a prior ruling. Moreover, the trial court gave clear curative instructions to the jury to ignore the content of any questions to which it sustained an objection, thereby minimizing any possible prejudice.

Finally, defense counsel failed to preserve any question concerning the prosecutor's summation by not objecting to it (CPL 470.05, subd. 2; People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111). While it is true that the prosecutor's summation contained several instances of improper vouching for the People's witnesses (see, e.g., People v. Blackman, 88 A.D.2d 620, 621, 450 N.Y.S.2d 38), it should be reviewed in light of the comments made by defense counsel on his summation (People v. Arce, 42 N.Y.2d 179, 190, 397 N.Y.S.2d 619, 366 N.E.2d 279). Here, defense counsel remarked on his summation that the prosecutor had failed to recall the victim to contest the defendant's version of what had happened in the bathroom and otherwise attempted to pit the defendant's credibility against the victim's.

We do not believe the cumulative effect of these asserted errors prejudiced defendant's right to a fair trial and find no basis for reversing this conviction in the interest of justice (CPL, 470.15, subd. 6; cf. People v. Balkum, 94 A.D.2d 933, 464 N.Y.S.2d 63). We have reviewed defendant's other contentions and find them to be without merit.

Judgment affirmed.

All concur, except GREEN, J., who dissents and votes to reverse and grant a new trial, in the following Memorandum:

I must dissent. Defendant was denied her constitutional right to a fair trial by the abusive, flagrant and unprovoked misconduct of the prosecutor. The fact that defense counsel did not object to some of the prosecutor's remarks does not preclude us from reaching the merits of defendant's claims as a matter of discretion in the interest of justice (see People v. Balkum, 94 A.D.2d 933, 464 N.Y.S.2d 63; People v. Santiago, 78 A.D.2d 666, 432 N.Y.S.2d 216; CPL 470.15, subd. 6).

Defendants was convicted of two counts of robbery in the second degree (Penal Law, § 160.10, subds. 1, 2, par. [a] ), and one count of assault in the second degree (Penal Law § 120.05, subd. 2) as a result of a fight in the ladies room of a restaurant on New Years Eve, 1982. The victim alleged that another woman, aided by the defendant, punched, kicked and bit her, banged her head against the bathroom wall and stole money from her purse. The victim received a lump on her forehead and scratches on her face and neck. Defendant took the stand and denied these allegations. Thus, as the Second Department observed in a similar context, "this is a case which, in effect, could have tried itself" (People v. Stewart, 92 A.D.2d 226, 227, 459 N.Y.S.2d 853).

Defendant was deprived of a fair trial because of the cumulative impact of the following errors. During cross examination of the defendant, the prosecutor repeatedly forced the defendant to characterize the prosecution's witnesses as liars (see People v. Bailey, 58 N.Y.2d 272, 460 N.Y.S.2d 1273, 447...