prosecutor improperly denigrated defense in New York

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2013While we agree with defendant that the prosecutor improperly denigrated the defense, that misconduct was not so egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d 1140, 1143 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]), and defense counsel’s failure to object to those comments did not deprive defendant of effective assistance of counsel (see Heck, 103 AD3d at 1143 ; People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).

2013While we agree with defendant that the prosecutor improperly denigrated the defense, that misconduct was not so egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d 1140, 1143 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]), and defense counsel’s failure to object to those comments did not deprive defendant of effective assistance of counsel (see Heck, 103 AD3d at 1143 ; People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2013While we agree with defendant that the prosecutor improperly denigrated the defense, that misconduct was not so egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d 1140, 1143 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]), and defense counsel’s failure to object to those comments did not deprive defendant of effective assistance of counsel (see Heck, 103 AD3d at 1143 ; People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).

2013While we agree with defendant that the prosecutor improperly denigrated the defense, that misconduct was not so egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d 1140, 1143 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]), and defense counsel’s failure to object to those comments did not deprive defendant of effective assistance of counsel (see Heck, 103 AD3d at 1143 ; People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2013The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2006During summation, the prosecutor improperly denigrated the defense by repeatedly referring to the defendant’s testimony as a “story” and a “load of garbage,” suggesting that the defendant lied on the witness stand, and stating that the defendant “had all the time in the world to tailor his testimony” to conform to the People’s proof (see People v Pagan, 2 AD3d 879 [2003]; People v Washington, 278 AD2d 517, 518 [2000]; People v Walters, 251 AD2d 433 [1998]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2006During summation, the prosecutor improperly denigrated the defense by repeatedly referring to the defendant’s testimony as a “story” and a “load of garbage,” suggesting that the defendant lied on the witness stand, and stating that the defendant “had all the time in the world to tailor his testimony” to conform to the People’s proof (see People v Pagan, 2 AD3d 879 [2003]; People v Washington, 278 AD2d 517, 518 [2000]; People v Walters, 251 AD2d 433 [1998]).

2006During summation, the prosecutor improperly denigrated the defense by repeatedly referring to the defendant’s testimony as a “story” and a “load of garbage,” suggesting that the defendant lied on the witness stand, and stating that the defendant “had all the time in the world to tailor his testimony” to conform to the People’s proof (see People v Pagan, 2 AD3d 879 [2003]; People v Washington, 278 AD2d 517, 518 [2000]; People v Walters, 251 AD2d 433 [1998]).

2003During summation, the prosecutor improperly denigrated the defense by repeatedly accusing the defendant of “lying” on the witness stand and tailoring his testimony to conform to the People’s proof (see People v Shanis, 36 NY2d 697 [1975]; People v Washington, 278 AD2d 517 [2000]; People v Walters, 251 AD2d 433 [1998]; cf. Portuondo v Agard, 529 US 61 [2000]; People v Russo, 201 AD2d 512 [1994], affd 85 NY2d 872 [1995]), and by stating that the defense counsel had tried to “trip . . . up” and “confuse” the complainant on cross-examination and mislead the jury in summation by asking it to focus

2006In addition, the prosecutor repeatedly vouched for the credibility of the People’s witnesses, stating that they were “credible and accurate,” and telling the jury that one witness “told you the truth,” while the other “told you exactly how it happened” (see People v Pagan, supra; People v Blowe, 130 AD2d 668, 671 [1987]).

2003In addition, the prosecutor repeatedly vouched for the complainant’s credibility, stating that he was “perfectly candid,” “being forthright,” and “very accurate,” stating that “I submit to you that [his] testimony is credible and it is also accurate,” and arguing that he had no motive to lie (see People v Blowe, 130 AD2d 668 [1987]; People v Ortiz, 125 AD2d 502 [1986]; People v Ricchiuti, 93 AD2d 842 [1983]).

2017We further agree with defendant that the prosecutor improperly denigrated the defense and defense counsel during summation (see People v Morgan, 111 AD3d 1254, 1255 [2013]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2008During summation, the prosecutor improperly denigrated the defense by repeatedly likening it to a “Hollywood” story and characterizing it as “ridiculous” and “absurd.” Comments of this type have been frequently disapproved (see People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People v Russell, 307 AD2d 385, 386 [2003]; People v LaPorte, 306 AD2d 93, 96 [2003]; People v Walters, 251 AD2d 433, 434 [1998]; People v World, 157 AD2d 567, 568 [1990]; People v Torres, 111 AD2d 885, 886 [1985]).

2003Finally, the prosecutor ended his summation by improperly telling the jury that there was “nothing that you can do that is ever going to give back to Jennifer Lozinski what she lost”; “nothing that you are going to do that’s going to make [defendant] understand”; and that “There is nothing that you are going to do that is even going to make him care.” These gratuitous remarks could have no other purpose but to inflame the jury (see People v Bhupsingh, 297 AD2d 386, 388 [2002] [involving substantiallysimilar language]; People v Miller, 149 AD2d 439 [1989] [improper to cast jury in role of commu

2003In addition, the prosecutor improperly denigrated defense counsel on a number of occasions, stating that “there were a whole lot of misrepresentations in defense counsel’s closing” and “there were outright falsehoods,” characterizing one of counsel’s arguments as “an outright lie,” and stating that this was one of “many, many things that he said during his summations that were just outright false” (see People v Lombardi, 20 NY2d 266, 273 [1967] [prosecutor’s statement that defense counsel was “dishonest” was prejudicial as a matter of law]).