People v. Ramirez

• Decision Date: 13 February 2020
• Docket Number: Ind. No. 819/12,2014-06470
• Parties: The PEOPLE, etc., Respondent, v. Malachi RAMIREZ, Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 811

117 N.Y.S.3d 696

The PEOPLE, etc., Respondent,

v.Malachi RAMIREZ, Appellant.

2014-06470

Ind. No. 819/12

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

Argued - November 12, 2019

February 13, 2020

Janet E. Sabel, New York, NY (David Crow and Patterson Belknap Webb & Tyler LLP [Daniel S. Ruzumna and Nicholas R. Hartmann ], of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Sharon Y. Brodt, and Aurora Alvarez–Calderon of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered June 18, 2014, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

As we found on the appeal of the defendant's codefendant, a new trial is required here due to the prosecutor's improper comments during summation (see People v. Ramirez, 150 A.D.3d 898, 899, 54 N.Y.S.3d 93 ). While the defendant's claims of prosecutorial misconduct during summation are partially unpreserved for appellate review, as we did on the codefendant's appeal, we review the partially unpreserved claims in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Ramirez, 150 A.D.3d at 899, 54 N.Y.S.3d 93 ).

"[O]n summation, a prosecutor may not ‘improperly encourage[ ] inferences of guilt based on facts not in evidence’ " ( People v. Gonsalves, 170 A.D.3d 886, 888, 94 N.Y.S.3d 626, quoting People v. Fisher, 18 N.Y.3d 964, 966, 944 N.Y.S.2d 453, 967 N.E.2d 676 ). As we determined in People v. Ramirez , 150 A.D.3d at 899–900, 54 N.Y.S.3d 93, the prosecutor here improperly suggested that the jury should disregard the grand jury testimony of one of the People's main witnesses, and invited the jury to speculate that a missing witness would have given supporting testimony if he had been called to testify. Contrary to the People's contention, the comments that were found prejudicial in the codefendant's case were equally prejudicial here, as the credibility of the People's witness was crucial to the case against this defendant, and the evidence against him was not overwhelming.

"The rule of Molineux is familiar: Evidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime" ( People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919 ). However, "evidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party" ( People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735 ; see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ). "In addition, evidence of uncharged crimes may be admitted as necessary background material when relevant to a contested issue in the case, or to complete the narrative of the events if such evidence is inextricably interwoven with the crime charged" ( People v. Foster, 295 A.D.2d 110, 112, 743 N.Y.S.2d 429 [citations omitted]; see People v. Morris, 21 N.Y.3d at 594, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Johnson, 137 A.D.3d 811, 812, 26 N.Y.S.3d 356 ). "Still, even if technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it ‘is actually of slight value when compared to the possible prejudice to the accused’ " ( People v. Arafet, 13 N.Y.3d at 465, 892 N.Y.S.2d 812, 920 N.E.2d 919, quoting People v. Allweiss, 48...