People v. Paul, 1

• Decision Date: 12 July 1996
• Docket Number: No. 1,1
• Citation: 229 A.D.2d 932,645 N.Y.S.2d 682
• Court: New York Supreme Court — Appellate Division
• Parties: PEOPLE of the State of New York, Respondent, v. Jeffrey PAUL, Appellant. (Appeal)

Page 682

645 N.Y.S.2d 682

229 A.D.2d 932

PEOPLE of the State of New York, Respondent, v. Jeffrey PAUL, Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

July 12, 1996.

Connor O'Brien, Webster, for Appellant.

Thomas E. Moran, Geneseo, for Respondent.

Before DENMAN, P.J., and GREEN, WESLEY, BALIO and BOEHM, JJ.

MEMORANDUM.

"The shackling of a defendant in the presence of the jury is inherently prejudicial and constitutes reversible error unless a reasonable basis therefor is in the record or it is clear that the jury was not prejudiced thereby" (People v. Vigliotti, 203 A.D.2d 898, 611 N.Y.S.2d 413; see, People v. Rouse, 79 N.Y.2d 934, 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172; People v. Sykes, 224 A.D.2d 986, 638 N.Y.S.2d 258). Here, County Court did not articulate a reasonable basis for the shackling of defendant and the prejudice to defendant is apparent from the record. The court took no steps to minimize the jury's view of the leg shackles (cf., People v. Houk, 222 A.D.2d 1074, 636 N.Y.S.2d 237) and their use was highlighted by a witness who identified defendant in court as the individual wearing a "[b]lue shirt and tie and ankle cuffs." Further, in its instruction to the jury, the court stated that, although defendant presented no security risk, it was the court's policy to shackle all defendants who failed to make bail.

Inasmuch as we are granting a new trial, we call attention to the impropriety of the prosecutor in suggesting that defendant fabricated his testimony after having had the advantage of hearing the People's proof (see, People v. Smith, 192 A.D.2d 806, 808, 596 N.Y.S.2d 539, lv. denied 81 N.Y.2d 1080, 601 N.Y.S.2d 600, 619 N.E.2d 678; People v. Jackson, 143 A.D.2d 363, 532 N.Y.S.2d 303) in beginning his cross-examination of defendant by addressing the fact that he had been incarcerated since his arrest; in asking defendant to characterize a prosecution witness as a liar and whether any other witnesses had a reason to lie (see, People v. Paul, 212 A.D.2d 1020, 1021, 623 N.Y.S.2d 50, lv. denied 85 N.Y.2d 912, 627 N.Y.S.2d 335, 650 N.E.2d 1337; People v. Parks, 120 A.D.2d 920, 921, 503 N.Y.S.2d 209, lv. denied 67 N.Y.2d 1055, 504 N.Y.S.2d 1031, 495 N.E.2d 364); in stating on summation that defendant had a reason to fabricate testimony because he was on trial (see, People v. Hudson, 104 A.D.2d 157, 158, 483 N.Y.S.2d 215); in making insulting references to defendant's character and in denigrating the defense as an attempt to "dance" and "block the view of the jury to the evidence"; and in vouching for the credibility of his witnesses (see, People v. LaDolce, 196 A.D.2d 49, 57, 607 N.Y.S.2d 523; People v. Clark, 195 A.D.2d 988, 990, 600 N.Y.S.2d 553). There were other improprieties as well. It 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 (see, People v. Payne, 187 A.D.2d 245, 593 N.Y.S.2d 675; People v. Mott, 94...