People v. Heiserman (2015)

If defendant’s challenges had been preserved, we would have found that the few remaining challenged remarks, even if better left unsaid, “did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial” (People v Heiserman, 127 AD3d 1422, 1424 [2015] [internal quotation marks and citation omitted]).

As for the remaining comments that defendant challenges, even if we were to conclude that they -8- 106644 were improper, we would find that they did not constitute such "a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive [him] of a fair trial" (People v Fiorino, 130 AD3d 1376, 1380 [2015] [internal quotation marks and citations omitted], lv denied 26 NY3d 1087 [2015]; see People v Mitchell, 129 AD3d at 1321 ; People v Heiserman, 127 AD3d 1422, 1424…

However, evidence is only relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case, and evidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh the countervailing risks of prejudice" ( People v Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks, ellipsis, brackets and citations omitted]).

However, evidence is only relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case, and evidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh the countervailing risks of prejudice" ( People v Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks, ellipsis, brackets and citations omitted]).

In our view, the investigator's testimony that acknowledged these points was not "introduced simply to demonstrate a predisposition to commit the subject offense" ( People v Hansel , 200 AD3d 1327 , 1331 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 38 NY3d 927 [2022]), but, rather, was a fair response to defense counsel's trial strategy and attacks on the credibility and motives of the prosecution's witnesses ( see People v Heiserman , 127 AD3d 1…

In any event, we conclude that defendant's contention is without merit and note that the court instructed the jury using the model instruction on one-witness identifications and cross-racial identifications ( see generally People v J.L. , 36 NY3d 112 , 122-123 [2020]; People v Heiserman , 127 AD3d 1422, 1424-1425 [3d Dept 2015]).

Next, given that defense counsel had questioned the credibility of certain law enforcement witnesses both on cross-examination and during closing argument, it was not improper for the prosecutor to ask the jury during summation to consider whether these witnesses had a motive to lie ( see People v Heiserman , 127 AD3d 1422, 1424 [3d Dept 2015]; People v Barber , 13 AD3d 898, 900 [3d Dept 2004], lv denied 4 NY3d 796 [2005]).

Relevant evidence may be excluded by the trial court, in its discretion, "if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury" ( People v Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks and citation omitted]).

The prosecutor's [*8]references to domestic violence were not so flagrant or pervasive in the context of the entire summation as to deprive defendant of a fair trial ( see People v Johnson , 183 AD3d 77, 90 [2020], lv denied 35 NY3d 993 [2020]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).

With regard to defendant's challenge to County Court's instruction that the plexiglass object was a dangerous instrument, defendant failed to object to the instruction during the charging conference or after the instruction was given to the jury so as to preserve said claim for our review ( see CPL 470.05 [2]; People v Houze , 177 AD3d 1184 , 1188 [2019], lv denied 34 NY3d 1159 [2020]; People v Heiserman , 127 AD3d 1422, 1424-1425 [2015]).

The prosecutor's comments about the victim's honesty were, for the most part, fair responses to defendant's repeated arguments in summation that she had a history of lying to get what she wanted and that she had lied about defendant's actions ( see People v Hartle , 159 AD3d 1149 , 1154 [2018], lv denied 31 NY3d 1082 [2018]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).

If we were to consider defendant's claims, we would find that the prosecutor either did not vouch for any witness's credibility or that this was proper commentary offered in response to defendant's argument during summation ( see People v Jackson , 160 AD3d 1125 , 1129 [2018]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).

Because the service element is phrased disjunctively — i.e., it is satisfied if the defendant violates either a "duly served" protective order or a protective order of which he or she has "actual knowledge" because of his or her presence in court (see People v Heiserman, 127 AD3d 1422, 1423 [3d Dept 2015]) — the People need prove only one of the statutory alternatives beyond reasonable doubt (see People v Becoats, 17 NY3d 643, 654 [2011], cert denied 566 US 964 [2012]; Peopl…

More to the point, these isolated comments "'did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial'" ( id. , quoting People v Heiserman , 127 AD3d 1422, 1424 [2015]; see People v Ressy , 141 AD3d 839, 842-842 [2016], lvs denied 28 NY3d 1030 [2016]; People v Wlasiuk , 136 AD3d 1101, 1103-1104 [2016], lv denied 27 NY3d 1009 [2016]).

During his summation, defense counsel attempted to cast doubt [*2]on the credibility of the witnesses, specifically stating with respect to one witness, "Is he credible?" As to another witness, defense counsel brought to the jury's attention the witness' prior convictions and further stated, "Why did he lie to you on the stand?" The prosecutor's comments during his summation, in our view, were a proper response to defense counsel's attacks on the credibility of the witnesses…

Here, defendant stated during her plea allocution that she did not intend to violate the underlying order [*2]of protection, thus negating an element of criminal contempt in the first degree ( see Penal Law § 215.51 [c]; People v Heiserman , 127 AD3d 1422, 1423 [2015]).

Finally, given that defendant failed to request a curative instruction at any point with regard to the officer’s testimony and did not object to the final charge as given, defendant’s claims in that regard are unpreserved for our review (see CPL 470.05 [2]; People v Jackson, 29 NY3d 18, 22 [2017]; People v Heiserman, 127 AD3d 1422, 1424-1425 [2015]).

Almost all of the prosecutor’s statements constituted fair comment on the evidence or a reasonable response to the defense summation, and any remarks that may have been improper “did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial” (People v Heiserman, 127 AD3d 1422, 1424 [2015] [internal quotation marks and citation omitted]).

Defendant raised no objection to that jury charge before County Court and, as such, the issue is not preserved for appellate review (see CPL 470.05 [2]; People v Melendez, 16 NY3d 869, 870 [2011]; People v Heiserman, 127 AD3d 1422, 1424-1425 [2015]).

The challenged testimony established, if anything, that the investigator made a mistake, and we perceive no basis for a finding that such testimony could have "unfairly prejudice[d] [defendant] or misl[ed] the jury" ( People v Scarola , 71 NY2d 769, 777 [1988]; see People v Heiserman , 127 AD3d 1422, 1423-1424 [2015]).