People v. Morgan

• Decision Date: 08 November 2013
• Citation: 974 N.Y.S.2d 687,111 A.D.3d 1254,2013 N.Y. Slip Op. 07288
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard MORGAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1254

974 N.Y.S.2d 687

2013 N.Y. Slip Op. 07288

The PEOPLE of the State of New York, Respondent,

v.Richard MORGAN, Defendant–Appellant.

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

Nov. 8, 2013.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ), grand larceny in the third degree (former § 155.35), criminal possession of a forged instrument in the second degree (§ 170.25), and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant was convicted upon a retrial after we reversed the first judgment of conviction based on a Batson violation ( People v. Morgan, 75 A.D.3d 1050, 1051–1053, 903 N.Y.S.2d 851,lv. denied15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017). Although on the prior appeal we did not need to address on the merits defendant's contention that he was deprived of a fair trial by prosecutorial misconduct inasmuch as we granted a new trial on Batson grounds, we nevertheless “note[d] our strong disapproval of the misconduct of the prosecutor on summation in improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the People's witnesses” ( id. at 1053, 903 N.Y.S.2d 851). We noted that, “[a]mong other objectionable remarks, the prosecutor stated on summation that ‘[t]he only way that you can find the defendant not guilty of burglary is if you believe that he falsely admitted to a crime that he didn't commit[,]’ ” and that, “ ‘to believe what [defendant] want[s] you to believe, you have to conclude that [two police detectives] are liars. Two police officers with forty years of experience between them ... They're going to come in here and perjure themselves on the stand, and risk prosecution themselves, for what? For this?’ ” ( id. at 1053–1054, 903 N.Y.S.2d 851).

On this appeal, defendant again contends that reversal is warranted based upon prosecutorial misconduct on summation, and we agree. Despite our prior admonition on defendant's first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper. The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury ( see People v. Miller, 104 A.D.3d 1223, 1223–1224, 960 N.Y.S.2d 584,lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396;People v. Lopez, 96 A.D.3d 1621, 1622, 946 N.Y.S.2d 780,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920;People v. Spann, 82 A.D.3d 1013, 1015, 918 N.Y.S.2d 588). In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] ... It is not about who isn't sitting at the defense table, it is about who is. Are you buying it? Because that's what they're selling. Theories disguised as arguments and posturing as evidence. And I'm not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn't give counsel license to make stuff up and pretend that it's evidence. They all have something in common. These theories, they're noise, they're nonsense. They want you to be distracted. Do not be distracted.”

In addition, the prosecutor misstated the evidence and the law ( see People v. Riback, 13 N.Y.3d 416, 423, 892 N.Y.S.2d 832, 920 N.E.2d 939;Spann, 82 A.D.3d at 1015–1016, 918 N.Y.S.2d 588;People v. Hetherington, 229 A.D.2d 916, 917, 645 N.Y.S.2d 679,lv. denied88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247), made an inappropriate “guilt by association” argument ( see People v. Parker, 178 A.D.2d 665, 666, 577 N.Y.S.2d 895), and improperly characterized the case as “about finding the truth and it is as simple as that” ( see People v. Ward, 107 A.D.3d 1605, 1606–1607, 966 N.Y.S.2d 805;People v. Benedetto, 294 A.D.2d 958, 959, 744 N.Y.S.2d 92;People v. Smith, 184 A.D.2d 326, 326, 585 N.Y.S.2d 209,lv. denied80 N.Y.2d 910, 588 N.Y.S.2d 835, 602 N.E.2d 243). Perhaps the prosecutor's most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney's office into the case ( see People v. Moye, 12 N.Y.3d 743, 744, 879 N.Y.S.2d 354, 907 N.E.2d 267;People v. Clark, 195 A.D.2d 988, 990, 600 N.Y.S.2d 553). With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated: “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that's what you have to do, and she was released on her own recognizance by the judge. And let me be very clear here when we talk about promises to witnesses or benefits that they received. Let me be very clear. Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony ” (emphasis added). The Court of Appeals condemned similar comments by the prosecutor in People v. Carter, 40 N.Y.2d 933, 934–935, 389 N.Y.S.2d 835, 358 N.E.2d 517.

In light of the foregoing, we conclude that reversal is warranted based on the pervasive and at times egregious misconduct on summation, particularly in light of our previous admonition to the People in this matter ( see Spann, 82 A.D.3d at 1015–1016, 918 N.Y.S.2d 588;People v. Wlasiuk, 32 A.D.3d 674, 681, 821 N.Y.S.2d 285,lv. dismissed7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1147). In short, as we said more than 15 years ago, “[i]t would seem, by now, unnecessary to emphasize again that the duty of the prosecutor is to honor established legal principles, not to secure a conviction by any and all means” ( People v. Paul, 229 A.D.2d 932, 933, 645 N.Y.S.2d 682).

We further agree with defendant that the evidence is legally insufficient to support the conviction of grand larceny in the third degree because there is insufficient evidence that the value of the stolen property exceeded $3,000 ( see Penal Law former § 155.35). Although defendant failed to preserve that contention for our review ( see People v. Snyder, 100 A.D.3d 1367, 1367–1368, 953 N.Y.S.2d 430,lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285), we nevertheless exercise our power to address it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). The value of stolen property is “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime” (Penal Law § 155.20[1] ). It is well established that “a victim must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” ( People v. Lopez, 79 N.Y.2d 402, 404, 583 N.Y.S.2d 356, 592 N.E.2d 1360), and that “[c]onclusory statements and rough estimates of value are not sufficient” ( People v. Loomis, 56 A.D.3d 1046, 1047, 867 N.Y.S.2d 772).

Here, the stolen property consisted of a PlayStation video game console, video games, DVDs, a laptop, an external hard drive, and other miscellaneous computer equipment. The victim testified that the value of the laptop was “about $2,000” and that he “had it for less than a year” before the burglary, but he did not testify as to the purchase price, the condition of the laptop, or the cost to replace it ( see People v. Geroyianis, 96 A.D.3d 1641, 1643–1644, 946 N.Y.S.2d 803,lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918,reconsideration denied19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818;People v. Vandenburg, 254 A.D.2d 532, 534, 681 N.Y.S.2d 359,lv. denied93 N.Y.2d 858, 688 N.Y.S.2d 506, 710 N.E.2d 1105). As for the PlayStation, the victim testified that it cost $150 in 2005. Although a “victim is competent to supply evidence of original cost” ( People v. Stein, 172 A.D.2d 1060, 1060, 569 N.Y.S.2d 552,lv. denied78 N.Y.2d 975, 574 N.Y.S.2d 955, 580 N.E.2d 427), “evidence of the original purchase price, without more, will not satisfy the People's burden” ( People v. Gonzalez, 221 A.D.2d 203, 204, 633 N.Y.S.2d 482). With respect to the remaining items of stolen property, the victim “provided only rough estimates of value ... without setting forth any basis for his estimates ..., and thus the evidence also is legally insufficient to establish the value...