People v. Overlee
| Decision Date | 04 December 1997 |
| Citation | 236 A.D.2d 133,666 N.Y.S.2d 572 |
| Parties | , 1997 N.Y. Slip Op. 10,267, 1997 N.Y. Slip Op. 10,268 The PEOPLE of the State of New York, Respondent, v. Gary OVERLEE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Julie E. Steiner, of counsel (Richard M. Greenberg and Dewey Ballantine, attorneys), for defendant-appellant.
Michael S. Morgan, of counsel (Ellen Sue Handman, on the brief, Robert M. Morgenthau, attorney), for respondent.
Before SULLIVAN, J.P., and ELLERIN, NARDELLI, WILLIAMS and ANDRIAS, JJ.
On this appeal from his conviction of assault in the second degree, criminal trespass in the second degree and resisting arrest, defendant raises a host of prosecutorial misconduct claims, including, inter alia, compelling him to characterize the People's witnesses as liars; characterizing him as a liar; bolstering the credibility of prosecution witnesses and repeatedly injecting into the case the prosecutor's own personal opinion as to defendant's guilt and his own theories as to the facts.
Briefly stated, the People's evidence showed that on the morning of April 24, 1992, as Jerry Santana, an off-duty New York City Housing Authority police officer, was leaving his apartment on the top floor of his Lexington Avenue apartment building, he found defendant sleeping on the interior roof landing. After identifying himself as a police officer, Santana asked defendant, who he knew did not live in the building, to leave. Agitated and belligerent, defendant refused. Santana immediately returned to his apartment and called the local precinct, identifying himself as an off-duty Housing Authority police officer, and asked for police assistance in removing the intruder from the building.
When Santana returned to the roof landing, he informed defendant, who was still lying down, that he had to leave and that the police had been called. After expressing his disdain for both Santana and the police, defendant grabbed Santana around the waist, picked him up and tried to throw him down the stairway. Santana responded by grabbing defendant around the neck and hitting him. At that point, several police officers arrived to see the two men struggling. Santana was pinned against the landing's bannister as defendant was grabbing him by the leg and lifting him off the ground. Santana, in turn, was clinging to defendant's torso to keep from being thrown over the railing. After a struggle with one of the police officers, defendant ultimately fell to the floor, face first, with the officer and Santana landing on top of him. As a result of the fall, Santana suffered a fracture of his right pinky finger. Defendant continued to struggle, hitting the officer who was trying to handcuff him. Even after he was handcuffed following a "long struggle", defendant kept kicking at the officers. Despite his continuing struggle, the officers removed defendant from the building. He was then taken to a hospital for medical treatment of a cut over his left eye, which was bleeding, sustained when his head struck the tile floor. One of the police officers was also injured, suffering a bruised left knee and dislocated thumb. Both Santana and the injured police officer were taken to the same hospital for treatment.
Defendant, taking the stand in his own behalf, testified that he was a resident of apartment No. 18 in the same building and that he had fallen asleep on the inside roof landing at about 6:15 a.m. on his return from the roof, where he had gone to watch the sunrise. He had been awake for the past 20 hours working at his job and, later, helping a friend repair a truck. When defendant awoke, he testified, Santana was standing over him, kicking him as he held a large Rottweiler dog by its collar. Eventually, after defendant had stood up, Santana grabbed him and spun him around, causing him to fall, face first, to the ground and to sustain a cut to his hand. When the police arrived defendant and Santana were still struggling. Defendant told the officers that he lived in apartment No. 18 but they beat him nonetheless. Thus, defendant claimed he was the victim of an unjustified assault by Santana and the responding police officers.
Defendant does not challenge the sufficiency of the evidence, which was more than enough to prove his guilt of the three charges against him. Rather, he asserts, the prosecutor, during his cross-examination and again in summation, "maliciously denigrated [him] in the eyes of the jury", "relentlessly challeng[ed him] to characterize the People's witnesses as liars" and repeatedly engaged in inappropriate trial tactics. In defendant's view, the totality of these improper tactics requires reversal. In advancing this argument, defendant takes selected portions of the record, often out of context, and argues, in essence, that any question or comment designed to discredit his testimony constitutes prosecutorial misconduct. As defendant must concede, however, he did not object to all of the cited alleged improprieties. Thus, most of his claims have not been preserved for appellate review. (See, CPL 470.05[2].)
In his testimony, defendant attempted to portray himself as a hardworking, law-abiding citizen who, virtually collapsing from fatigue on the interior roof landing of his building after working, in effect, a double shift into the early hours of the morning, met up with Santana, a mean-spirited off-duty police officer, who unjustly attacked him. He was thereafter brutalized, he claims, by the responding police officers, who subsequently arrested him. Given such a portrayal, the prosecutor had the right to subject defendant to vigorous cross-examination and to attack his version of the facts in summation.
Once a defendant testifies and places his credibility in issue, a prosecutor need not tread lightly in cross-examining him or arguing his case to the jury. The prosecutor must not, of course, stray from the record evidence or relevant issues. As an advocate, he is permitted, within the discretionary limits imposed by the trial court (see, People v. Duffy, 36 N.Y.2d 258, 262-263, 367 N.Y.S.2d 236, 326 N.E.2d 804), to cross-examine a defendant "as forcefully as possible" (People v. Adams, 21 N.Y.2d 397, 402, 288 N.Y.S.2d 225, 235 N.E.2d 214). He is similarly afforded wide latitude in his summation. (See, People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885.) In assessing the propriety of a prosecutor's cross-examination or summation, the arguments raised by the defendant must be taken into account since the prosecutor has the right to respond. (See, People v. Morgan, 66 N.Y.2d 255, 259, 496 N.Y.S.2d 401, 487 N.E.2d 258.) Hence, the issue before us, considering the claims on the merits, notwithstanding, for the most part, the lack of preservation, is whether, either in cross-examination or summation, the prosecutor's conduct was so egregious as to have deprived defendant of a fair trial. Viewed in the light of these standards, the prosecutor's conduct never exceeded the bounds of permissible advocacy.
In his testimony, defendant offered a factual version entirely at odds with that of the People's witnesses, most notably Santana and Officer Delgado, one of the responding officers. When defendant's counsel asked defendant to explain certain discrepancies, defendant answered by saying that "Officer Santana is a liar." On cross-examination, the prosecutor, not unexpectedly, also asked defendant about the differences between his and the prosecution's account of the incident.
Q. Isn't it true a month prior you kicked in the door to gain entry
A. Absolutely not.
Q. So when Officer Santana says that he saw you do that, he's lying?
A. He's basically, a liar. I found that out by his testimony.
Q. I'm sorry, I didn't mean to interrupt. According to your testimony everyone is a liar?
A. No, I didn't say everybody is a liar.
Q. Well, these police officers are liars?
A. No, not all the police officers are liars. I said two of them lied, that's what I said.
All right, and I actually only accused one of them. But if you want to get into it, there was two, Delgado lied. But I didn't say Fuentes lied about anything. He was actually about as honest about the situation as what he saw, but not the other two.
Q. So, its your testimony that Delgado is a liar?
A. He definitely is a liar because he wasn't the first one up there. And in fact, he says that he knew that one was a police officer and one of us was not. Well, the call that they had on the radio said that he was a--that I was--.
* * * * * *
Q. Mr. Overlee, answering yes or no, was Officer Santana a liar when he testified here?
A. Was Officer Santana a liar when he testified here?
Q. Yes.
A. Yes.
Q. Was Officer James Delgado a liar when he testified here?
A. Yes, he lied.
* * * * * * Q. Did you hear Officer Fuentes say he was going to get you out of the building and get you medical help?
A. He was trying to get me out of the building to arrest me, he was not trying to get me medical help. He was arresting me, that was his primary concern. He was arresting me, he was not taking me for medical help.
* * * * * *
He kind of was exaggerating his position, that's why I said that he basically told the truth. But he's in a funny position when he had two police officers lying and he's telling the truth, it puts him in a bad light.
* * * * * *
Q. Yes, it's fair to say that Police Officer Fuentes did not tell the whole truth, is that correct?
A. I think that he tells the truth as he remembers it, but I don't think that he remembers it as clearly as I do, that's for sure.
* * * * * *
Q. So, Officer Fuentes was not telling the whole truth, correct?
A. I can't state to that, I can't say whether he's telling the whole truth or not.
Q. But in any event, you can state that at least two of the officers are lying?
A. Yes, absolutely.
On redirect examination, at counsel's request to "tell the jury what was true versus...
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