People v Gutierrez (Thomas)

[*1] People v Gutierrez (Thomas) 2010 NY Slip Op 51067(U) [27 Misc 3d 143(A)] Decided on June 14, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT:: WESTON, J.P., GOLIA and RIOS, JJ
2007-1764 Q CR.

The People of the State of New York, Respondent,

against

Thomas Gutierrez, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered October 11, 2007. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the second degree and endangering the welfare of a child.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for a new trial.

Defendant was convicted, after a jury trial, of sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10 [1]), both charges arising out of a single incident that allegedly occurred when defendant took the complaining witness to see a movie. In our opinion, the judgment of conviction must be reversed because the prosecutor's summation so "exceeded the bounds of fair advocacy" (People v Calabria, 94 NY2d 519, 523 [2000]) as to warrant a new trial.

As a preliminary matter, we reject the People's argument that the pertinent claims of prosecutorial misconduct are not preserved for appellate review. Under the particular circumstances here, defense counsel's general objections to the prosecutor's comments, and subsequent motion for a mistrial, preserved the claims (see CPL 470.05 [2]; People v Eduardo, 11 NY3d 484, 493 [2008]; People v Williams, 5 NY3d 732, 736 [2005] [R.S. Smith, J., concurring]; People v Prado, 4 NY3d 725, 726 [2004]; People v Santiago, 52 NY2d 865, 866 [1981]; People v Davis, 69 AD3d 647 [2010]; cf. People v Romero, 7 NY3d 911, 912 [2006]; People v Hiers, 64 AD3d 616 [2009]; People v Molina, 26 Misc 3d 51, 53-54 [App Term, 9th & 10th Jud Dists 2009]).

With respect to the merits of defendant's claims, while the prosecutor has wide latitude to "comment upon every pertinent matter of fact bearing upon the questions the jury have to decide," such latitude does not permit "an unbridled debate in which the restraints imposed at [*2]trial are cast aside so that counsel may employ all rhetorical devices at his command. There are certain well-defined limits" (People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation marks omitted]). Moreover, the fundamental obligation of a prosecutor is to seek justice, and not merely obtain a conviction (People v Miller, 149 AD2d 439, 440 [1989], citing Code of Professional Responsibility, EC 7-13).

Here, the prosecutor's highly inflammatory remarks during summation were so prevalent that no curative instruction could have alleviated the prejudice created by the remarks (see Calabria, 94 NY2d at 523). The prosecutor began his vitriolic summation by referring to defendant as a "predator." He went on to argue that defendant had kept certain movie tickets that were introduced into evidence by the defense as a "trophy from another night, a different outing with a different child." Despite the court's having sustained defense counsel's objection to the latter remark, the prosecutor continued to accuse defendant of prior uncharged sex crimes with other children:
"Was this [the complaining witness's] ticket, we are not sure. Why keep them for a collection that the defendant says he keeps in a draw[er]? Why keep both? Would that double your collection size? Why keep two movie tickets of a movie on an insignificant date?
Ladies and gentlemen, I submit that these tickets are a trophy for this predator as a remembrance for a night that was special to this defendant. A night that put [the complaining witness] in the defendant's collection."
Such accusations are patently improper and serve no purpose other than to invite the jury to convict defendant on an alleged propensity to commit the type of crime charged (see People v Sayers, 64 AD3d 728 [2009]; People v Liverpool, 35 AD3d 506 [2006]; People v Sanders, 303 AD2d 694 [2003]).

On this record, we conclude that the cumulative effect of the prosecutor's persistent and improper references to prior uncharged sex crimes both in summation and during his examination of witnesses deprived defendant of his right to a fair trial (see People v Riback, 13 NY3d 416 [2009]; People v Brown, 26 AD3d 392 [2006]; see also People v Goldstein, 196 Misc 2d 741 [App Term, 2d & 11th Jud Dists 2003]). Moreover, in this case, where proof of defendant's guilt was not overwhelming but rather turned on the jury's assessment of a single eyewitness, we cannot conclude that the prosecutor's comments were harmless (see People v Alexander, 94 NY2d 382, 385 [1999]).Accordingly, the judgment of conviction is reversed and the matter remitted for a new trial.

Weston, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment of conviction in the following memorandum: [*3]

I agree with the majority that the issue of the prosecutor's "predator" and "trophy . . . collection" comments is preserved. I also agree with the majority that the comments were inappropriate. Finally, I do not dispute that some of the comments in question, had they gone unaddressed by the trial court, might potentially have been prejudicial.

Nevertheless, I disagree with the majority as to the remedial power of the appropriate, and factually specific, curative instructions delivered by the trial court. The trial court told the jury:

"The defendant is on trial in this case charged with two crimes allegedly involving the complaining witness . . ., which allegedly occurred during an incident at the Jamaica movie theater. Any suggestion during the prosecutor's summation that there are any other victims or any other crimes committed by this defendant was highly improper. The arguments was [sic] highly improper and meant only to inflame the passions and was pure speculation. You must completely disregard it."
Defense counsel then requested a further curative instruction. The court added:
And, there is no evidence to support that."

After the court issued its curative instructions, defense counsel did not raise any further objections. I find that the curative instructions made it abundantly clear to the jury that there had been no proof that defendant had actually committed any prior crimes, and pointedly conveyed to the jury both the prosecutor's blameworthiness and the court's displeasure with the prosecutor's conduct. In my view, the instruction dispelled the potential prejudice (see People v Ferguson, 82 NY2d 837, 838 [1993]; People v Gibbs, 59 NY2d 930, 932 [1983]; People v Artis, 63 AD3d 1173, 1173-1174 [2009]; cf. People v Riback, 13 NY3d 416 [2009]).

My colleagues in the majority rely on the holding of the recent Court of Appeals case of People v Riback (13 NY3d 416) for the proposition that "the cumulative effect of the prosecutor's persistent and improper references to prior uncharged sex crimes both in summation and during his examination of witnesses deprived defendant of his right to a fair trial." The facts and circumstances this case are, however, entirely different from those of Riback.

In Riback, the trial judge committed the initial error of allowing expert testimony over objection as to the definition of the word "pedophile" and the "central characteristics" of a "pedophile." The Court of Appeals found that this error became a springboard for the prosecutor to venture well beyond the evidence and the bounds of fair comment during his summation" (id. at 421). In the case at bar, the trial court did not commit any error or allow any improper testimony. Quite the contrary, the trial court not only granted defendant's objection to the prosecutor's attempt to imply that there were other uncharged crimes, but also gave very strong and factually specific curative instructions to the jury to the effect that there was no evidence to warrant the prosecutor's even making the improper statements.

Moreover, unlike the prosecutor in Riback, the prosecutor in this case did not persist in repeating claims of uncharged crimes again and again. The majority's equating this case with Riback is, in my opinion, overreaching.

The majority also refers to "the prosecutor's persistent and improper references to prior [*4]uncharged sex crimes . . . during his examination of witnesses . . ." I find no pattern of improper examination that would warrant reversal. While it is true that the prosecutor asked the young victim's mother a question that elicited a response to the effect that defendant had, on prior occasions, invited other children to his house, the objective in posing the question was apparently only to clarify the mother's somewhat confusing testimony. In any event, the trial court promptly and appropriately struck the mother's response. The prosecutor also questioned the victim's parents about whether defendant had issued prior invitations to the victim that the victim's parents had declined. The prosecutor's questions were proper because defendant's issuance of prior invitations was relevant to the charged offense in that it tended to establish that defendant was persistent in wanting to spend time with the victim. This, in turn, was particularly relevant because defendant is a grown man and the victim is a young child. The prosecutor made no attempt to elicit testimony suggesting that anything untoward had occurred in connection with the prior invitations.

I also disagree with the majority's assertion that "proof of defendant's guilt was not overwhelming but rather turned on the jury's assessment of a single eyewitness . . . (see People v Alexander, 94 NY2d 382, 385 [1999])." In fact, the Court of Appeals stated in Alexander, "[t]his was an identification case that turned on the jury's assessment of a single witness" (id. at 385 [emphasis added]). In the case at bar, there was no issue concerning the identification of defendant as the individual involved in the incident; hence, there was no issue as to the adequacy of one-witness identification testimony. The only question presented here was whether there was an improper touching of the victim by defendant. This was simply an issue of credibility — whether the jury accepted the victim's unequivocal statements or defendant's sometimes equivocal statements. In substance, the victim asserted that defendant tried to put his hand down the victim's pants and defendant asserted that this activity never occurred. I find the proof of defendant's guilt to be overwhelming (see People v Crimmins, 38 NY2d 407 [1975]).

I therefore disagree with the majority's equating the proof here with that in a single-witness identification case such as People v Riback. In an identification case, the circumstances of the crime are uncontested and the sole issue is the involvement of the defendant. In this case, the opposite is true. Consequently, I would sustain the ruling of the trial court.

Defendant's remaining claims are not preserved, because defense counsel did not request further relief after the court sustained his objections or delivered curative instructions (see People v Campbell, 68 AD3d 890 [2009]; People v Mitchell, 68 AD3d 784 [2009]), and I would decline to reach them in the interest of justice.
Decision Date: June 14, 2010