People v. Presha

• Decision Date: 01 April 2011
• Citation: 919 N.Y.S.2d 713,83 A.D.3d 1406,2011 N.Y. Slip Op. 02563
• Parties: The PEOPLE of the State of New York, Respondent,v.Lawrence PRESHA, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1406

919 N.Y.S.2d 713

2011 N.Y. Slip Op. 02563

The PEOPLE of the State of New York, Respondent,

v.Lawrence PRESHA, Jr., Defendant–Appellant.

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

April 1, 2011.

Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sodomy in the first degree (Penal Law former § 130.50 [1], [3] ). The victim, who was 12 years old at the time of the trial, testified that the conduct at issue occurred six years earlier, during a period in which he lived with defendant for approximately four months. The victim testified that, after the sodomy occurred, defendant physically abused him by punching and kicking him, slamming him against a wall and threatening him, and throwing him down the stairs. The victim disclosed the conduct at issue five years after it occurred. In his testimony at trial, defendant denied that the conduct occurred, and he denied that he had physically abused the victim.

We reject defendant's contention that County Court erred in allowing the victim to testify that defendant had physically abused him on one occasion prior to the date of the conduct at issue. That Molineux evidence was relevant to establish the element of forcible compulsion ( see People v. Cook, 93 N.Y.2d 840, 841, 688 N.Y.S.2d 89, 710 N.E.2d 654), and to explain the victim's delay in reporting the abuse ( see People v. Bennett, 52 A.D.3d 1185, 1187, 859 N.Y.S.2d 836, lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657). Although the court agreed with defendant that the evidence was “incredibly prejudicial,” the court nevertheless properly balanced the probative value of the evidence against its potential for prejudice to defendant ( see People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Mosley, 55 A.D.3d 1371, 864 N.Y.S.2d 622, lv. denied 11 N.Y.3d 856, 872 N.Y.S.2d 79, 900 N.E.2d 562).

We agree with defendant, however, that the court erred in failing to issue a limiting instruction to the jury when the evidence was admitted and during the final jury charge, to minimize the prejudicial effect of the admission of the evidence ( see People v. Greene, 306 A.D.2d 639, 642–643, 760 N.Y.S.2d 769, lv. denied 100 N.Y.2d 594, 766 N.Y.S.2d 170, 798 N.E.2d 354). While defendant failed to preserve his contention for our review ( see People v. Sommerville, 30 A.D.3d 1093, 1094–1095, 816 N.Y.S.2d 651), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). “In a case such as this, where the finding of guilt rests squarely on the jury's assessment of the credibility of the victim and defendant, we cannot say that the error was harmless and did not affect the jury's verdict” ( Greene, 306 A.D.2d at 643, 760 N.Y.S.2d 769; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; cf. Mosley, 55 A.D.3d at 1372, 864 N.Y.S.2d 622). We therefore agree with defendant that, under the circumstances of this case, he was denied a fair trial based on the court's failure to give a limiting instruction, and we thus reverse the judgment and grant a new trial ( see Greene, 306 A.D.2d at 643, 760 N.Y.S.2d 769).

Finally, defendant contends that the prosecutor engaged in misconduct during the trial. Defendant failed to preserve for our review his contention with respect to many of the instances of prosecutorial misconduct ( see People v. Scission, 60 A.D.3d 1391, 1392, 875 N.Y.S.2d 384, lv. denied 12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594, rearg. denied 13 N.Y.3d 749, 886 N.Y.S.2d 103, 914 N.E.2d 1021), and we need not determine whether he was denied a fair trial based on the alleged instances that are preserved for our review inasmuch as we are granting a new trial in any event ( cf. People v. Milczakowskyj, 73 A.D.3d 1453, 1454, 900 N.Y.S.2d 573, lv. denied 15 N.Y.3d 754, 906 N.Y.S.2d 826, 933 N.E.2d 225; People v. Mott, 94 A.D.2d 415, 418–419, 465 N.Y.S.2d 307). Nonetheless, we note that the prosecutor improperly questioned defendant on cross-examination regarding, e.g., the fact that he impregnated three women within a short amount of time and his failure to pay child support ( see People v. Reid, 281 A.D.2d 986, 722 N.Y.S.2d 848, lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666). Defendants “may be cross-examined with respect to prior conduct that affects their credibility” ( People v. Brazeau, 304 A.D.2d 254, 256, 759 N.Y.S.2d 268 [internal quotation marks omitted], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481; see People v. Walker, 83 N.Y.2d 455, 461, 611 N.Y.S.2d 118, 633 N.E.2d 472), but “persistent questioning of a defendant on collateral matters which tends to impugn his [or her] character without being probative of the crime charged constitutes improper and prejudicial cross-examination” ( People v. Hicks, 102 A.D.2d 173, 182, 478 N.Y.S.2d 256; see People v. Bhupsingh, 297 A.D.2d 386, 387–388, 746 N.Y.S.2d 490). The prosecutor also improperly attempted to refresh the recollection of defendant during cross-examination when in fact she was attempting to place the contents of a certain document in evidence that otherwise was inadmissible ( see People v. Carrion, 277 A.D.2d 480, 481, 715 N.Y.S.2d 257, lv. denied 96 N.Y.2d 757, 725 N.Y.S.2d 283, 748 N.E.2d 1079; People v. Kellogg, 210 A.D.2d 912, 913–914, 621 N.Y.S.2d 418, lv. denied 86 N.Y.2d 737, 631 N.Y.S.2d 618, 655 N.E.2d 715). Finally, the prosecutor remarked during summation that the victim was “so cute” and the “most conscientious, respectful kid [she had] ever seen.” Such remarks improperly appealed to the sympathy of the jury ( see People v. Ballerstein, 52 A.D.3d 1192, 1194, 860 N.Y.S.2d 718; People v. Bowie, 200 A.D.2d 511, 512–513, 607 N.Y.S.2d 248, lv. denied 83 N.Y.2d 869, 877, 613 N.Y.S.2d 130, 137, 635 N.E.2d 299, 306), and improperly vouched for the credibility of the victim ( see People v. Moye, 12 N.Y.3d 743, 879 N.Y.S.2d 354, 907 N.E.2d 267; Ballerstein, 52 A.D.3d at 1194, 860 N.Y.S.2d 718). We thus take this opportunity to admonish the prosecutor that her “ ‘mission is not so much to convict as it is to achieve a just result’ ” ( People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273), and that she is “charged with the responsibility of presenting competent evidence fairly and temperately, not to get a conviction at all costs” ( Mott, 94 A.D.2d at 418, 465 N.Y.S.2d 307; see Bhupsingh, 297 A.D.2d at 388, 746 N.Y.S.2d 490).

It is hereby ORDERED that the judgment so appealed from is reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted.

All concur except SCUDDER, P.J., and SCONIERS, J., who dissent and vote to affirm in the following Memorandum:

We agree with the majority that County Court properly exercised its discretion in allowing the victim to testify that defendant had physically abused him on one occasion prior to the sexual assault that is the basis for defendant's conviction of two counts of sodomy in the first degree (Penal Law former § 130.50[1], [3] ), one count of which is based on the age of the victim. We also agree that the court erred in failing to give a limiting instruction to the jury at the time the evidence was offered and during the final jury charge, to minimize whatever prejudice may have resulted from the admission of that testimony. We nevertheless respectfully disagree with the majority that reversal is warranted. First, as the majority acknowledges, defendant failed to preserve this issue for our review ( see People v. Wright, 5 A.D.3d 873, 876, 773 N.Y.S.2d 486, lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212; People v. Williams, 241 A.D.2d 911, 663 N.Y.S.2d 1023, lv. denied...