People v. Proper

• Decision Date: 27 November 1991
• Citation: 576 N.Y.S.2d 630,177 A.D.2d 863
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald PROPER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 630

576 N.Y.S.2d 630

177 A.D.2d 863

The PEOPLE of the State of New York, Respondent, v. Gerald PROPER, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 27, 1991.

Paul L. Gruner (Denise Y. Dourdeville, of counsel), Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before MAHONEY, P.J., and WEISS, YESAWICH, LEVINE and MERCURE, JJ.

MERCURE, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered March 27, 1990, upon a verdict convicting defendant of the crimes of rape in the first degree and sodomy in the first degree.

Defendant was indicted on charges of rape in the first degree, sodomy in the first degree and aggravated sexual abuse in the second degree in connection with a series of events that defendant maintained was a consensual sexual encounter with a 17-year-old girl. Following a trial, defendant was convicted of rape in the first degree and sodomy in the first degree. Defendant was sentenced as a second felony offender to concurrent prison terms of 12 1/2 to 25 years and this appeal ensued.

The principal question on this appeal is whether the cumulative effect of the comments made by the prosecutor during summation deprived defendant of his right to a fair trial. In addition to the testimony of the complainant, the People introduced the testimony of both the doctor and the nurse who saw the complainant in the emergency room, the complainant's sister, several State Troopers and a laboratory technician. Substantial testimony was devoted to the attempts to capture defendant, apparently calculated to convey his consciousness of guilt with respect to this incident. Defendant testified on his own behalf, maintaining that he in fact had intercourse with the complainant on the night in question, that it was entirely consensual and that he ran from the police not because of the incident, but because of another outstanding warrant against him. Defendant also testified that he observed the complainant drinking beer and smoking marihuana prior to their sexual encounter.

During summation, after alluding to the importance to the defense of establishing the complainant's involvement with drugs and alcohol immediately prior to the incident and praising the laboratory technician, the prosecutor referred to the technician's testimony that the complainant "had not consumed any drugs within at least 24 hours of that blood sample being taken" and that there was no alcohol in her system. The prosecutor then stated that the technician would "only * * * render [his opinion] when he is satisfied in his heart, in his soul and in his mind that what he tells you is correct. And what he testified to is right on the money * * *." The prosecutor then went on to comment on defendant's failure to call certain witnesses concerning defendant's attempt to avoid capture and the complainant's consent, stating "if what [defendant] told you here was true * * * [w]hy doesn't his sister step into this courtroom * * * and why isn't * * * his best friend [the other alleged witness] here telling you what [he] apparently saw at PJ's that night and what [he] told [defendant] about the Saugerties warrant".

It is fundamental that a prosecutor may not vouch for the credibility of his witnesses (see, People v. Lovello, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483), thereby "making himself an unsworn witness and supporting his case by his own veracity and position" (id., at 439, 154 N.Y.S.2d 8, 136 N.E.2d 483). Although we agree with the People that the prosecutor's comments about the complainant's credibility were fair in light of defendant's attacks on her veracity (see, People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885), defendant never attacked the veracity of the technician. Thus, the prosecutor's comments as to his credibility were clearly improper, constituted an expression of personal opinion (see,...