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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 10
The People &c.,
Respondent,
v.
Urselina King,
Appellant.
Kendra L. Hutchinson, for appellant.
Solomon Neubort, for respondent.
PIGOTT, J.:
Defendant was convicted, after a jury trial, of
burglary in the first degree (Penal Law § 140.30 [3]) and assault
in the second degree (Penal Law § 120.05 [2]) for events that
occurred on March 9, 2008. On that date, defendant and an
accomplice attacked the victim, ransacked her apartment and stole
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$300 from her purse. Defendant argues on this appeal that the
trial court committed a mode of proceedings error when it
discharged potential jurors on hardship grounds without
conducting a sufficient inquiry into the particular hardship, and
erred in precluding evidence of third-party culpability proffered
by the defense that, according to defendant, would have
demonstrated that other unidentified individuals had a motive to
attack the victim. Defendant further argues that she was
deprived of the effective assistance of counsel because trial
counsel failed to object to certain improper statements made by
the prosecutor during summation.
I.
At trial, the victim testified that, at approximately
4:00 a.m. on March 9, 2008, she returned to her third-floor
apartment after work. While she was unlocking her apartment
door, a masked man and defendant (who was unmasked) appeared from
a nearby stairwell. Defendant was brandishing a knife. The
masked man struck the victim on the forehead with a gun, causing
her to fall to the floor. Defendant stepped on the victim's
stomach, grabbed the victim's keys and, along with the masked
man, dragged the victim into her apartment. While inside,
defendant cut the strap to the victim's purse, dumped the purse's
contents and stole money. Defendant alternated between striking
the victim and ransacking the apartment. At one point, defendant
asked the victim if she was "willing to die for Tone" -- a
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reference to Tony Mann, the victim's boyfriend and father of
defendant's two children. The victim was taken by ambulance to a
hospital, where she received treatment for cheek and nasal
fractures and other injuries to her face and head. Approximately
a week after the incident, the victim picked the defendant out of
a line-up and she was thereafter arrested.
The case proceeded to trial. Prior to voir dire, the
court informed the panel that it expected the trial to last
approximately five days, and stated that it recognized that for
some of the prospective jurors five days may be a hardship
because of family obligations or business commitments. It stated
that if any of the prospective jurors had a hardship based on
family or business obligations, the court could excuse them from
the trial but not from jury duty, meaning that the excused
prospective jurors would be returned to the jury room where they
could be assigned to another case. The court asked those
prospective jurors who had such hardships to raise their hand and
directed them to the center aisle, at which point, the court
apprised them that "[t]he clerk will speak to you about your
hardship."
After those prospective jurors exited the courtroom,
the court provided the remaining prospective jurors with a
general synopsis of the charges that were brought against
defendant, along with a general statement concerning the People's
allegations and the defendant's alibi defense. The court then
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asked the remaining prospective jurors if any of them did not
believe that they could be a fair and impartial juror. After
excusing a couple prospective jurors, the court began the process
of formal voir dire, which involved calling 16 names at random
from the remaining prospective jurors and directing them to the
jury box. Following questioning by the court and the attorneys,
a jury was empaneled and sworn in.
The People thereafter presented their case, the theory
of which was that defendant, jealous at having been left by Mann
with whom she'd had two children, sought revenge against the
victim. In her defense, defendant called three alibi witnesses,
all of whom testified that defendant had returned home at 1:00
a.m. the day of the incident and remained there. Defendant also
unsuccessfully sought to introduce third-party culpability
evidence indicating that two men who were upset with Mann over a
drug dispute, rather than defendant, had a motive for attacking
the victim and burglarizing her apartment.
During summation, defense counsel attacked the
credibility of the People's witnesses, including the victim, and
steadfastly maintained that defendant's alibi defense had created
reasonable doubt. The prosecutor argued in his summation that
the case was about "jealousy" and "obsession" and "hell have
[sic] no fury as a woman's scorn [sic]." He posited that "[o]nly
a woman would inflict this kind of beating. Only a woman who is
trying to maim and disfigure her rival . . . would cause this
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kind of injury," and that "[t]his crime is a woman. That's why
she did it at [the victim's] house" by laying in wait on the
stairs and "toying with her rival."1 Defense counsel did not
object to any of these statements.
The jury convicted defendant of burglary in the first
degree and assault in the second degree. Defendant was sentenced
to a concurrent term of nine years' imprisonment and five years'
post-release supervision on the burglary conviction, and seven
years' imprisonment and three years' post-release supervision on
the assault conviction.
The Appellate Division affirmed in a 3-1 decision,
holding, as relevant here, that defendant failed to preserve her
contention that the trial court improperly discharged potential
jurors based upon hardship without first conducting a sufficient
inquiry, that the trial court correctly precluded as speculative
so-called third-party culpability evidence and that, although
certain of the prosecutor's summation statements improperly
included gender stereotyping, the comments did not deprive
defendant of a fair trial (110 AD3d 1005, 1006-1007 [2d Dept
2013]). The dissenting Justice would have reversed the judgment
and ordered a new trial in the interest of justice on the ground
1
The prosecutor also called into question defendant's
alibi defense by claiming that the defendant made "a desperate
attempt" to provide alibi witnesses at the last minute, but the
trial court interjected that the defense had in fact served a
notice of alibi prior to trial, such that it was no surprise to
the prosecution when the alibi defense was presented at trial.
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that the prosecution's summation comments improperly appealed to
gender bias and that certain comments that attacked defendant's
alibi defense as having been devised in the last minute were
unsupported by the record (see id. at 1007-1008 [Hinds-Radix, J.,
dissenting]).
A Judge of this Court granted defendant leave to appeal
and we now affirm.
II.
Defendant first contends that the trial court abdicated
its judicial function by allowing prospective jurors to opt out
of serving on the jury due to a hardship and delegated that
function to the clerk and the prospective jurors. Defendant
acknowledges that trial counsel failed to object to the court's
procedure, so the issue presented is whether the court, assuming
that the procedure was error in the first place, committed a mode
of proceedings error that deprived defendant of her right to a
jury trial under the supervision of a judge.
This Court may reach unpreserved questions of law "in a
very narrow category of cases" where the errors "go to the
essential validity of the process and are so fundamental that the
entire trial is irreparably tainted" (People v Kelly, 5 NY3d 116,
119-120 [2005]; see People v Ahmed, 66 NY2d 307 [1985], rearg
denied 67 NY2d 647 [1986]). Errors contained in this "tightly
circumscribed class" do not require preservation (Kelly, 5 NY3d
at 120). We found such an error in Ahmed, where the trial judge
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absented himself and had delegated certain functions to the law
secretary during jury deliberations (see Ahmed, 66 NY2d at 310).
We concluded that an issue of law was presented for our review,
notwithstanding the defendant's failure to timely object to the
procedure, because the trial judge's "failure . . . to retain
control of deliberations" implicated "the organization of the
court or the mode of proceedings prescribed by law" (id.
[citation omitted]). Upon reaching the merits, we held that the
actions of the trial judge, including his delegation of certain
responsibilities to his law secretary, "deprived defendant of his
right to a proper trial by jury" (id. at 311).
Years later in People v Toliver (89 NY2d 843 [1996]),
we acknowledged that "[t]he presence of and supervision by a
Judge constitutes an integral component of the right to a jury
trial" (id. at 844, citing Ahmed, 66 NY2d at 311-312). In
Toliver, the trial judge absented himself from portions of the
actual voir dire examination of the jurors and questioning by the
attorneys. We held that this absence violated the defendant's
"fundamental right to have a Judge preside over and supervise the
voir dire proceedings while prospective jurors are being
questioned regarding their qualifications," and that the trial
judge's relinquishment of control over the proceedings or
delegation of the duty to supervise deprived defendant of his
right to a jury trial (Toliver, 89 NY2d at 844 [emphasis
supplied]). The trial judge's absence from actual voir dire
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constituted reversible error because "it is the Judge who is the
ultimate arbiter of a prospective juror's fitness to serve" (id.
at 845, citing CPL 270.20 [entitled, "Trial jury; challenge for
cause of an individual juror"]).
Relying primarily on Ahmed and Toliver, defendant
asserts that she was deprived of her right to have a judge
"supervise" the process over which prospective jurors are excused
for purposes of hardship, such that no objection to the procedure
was required. We disagree.
There are significant distinctions between this appeal
and Ahmed and Toliver. The mode of proceedings error in Ahmed
was the court's "failure . . . to retain control of
deliberations," which we held impacted the defendant's
constitutional right to a trial by jury (Ahmed, 66 NY2d at 310).
Indeed, we later acknowledged that the procedure utilized by the
trial court in Ahmed constituted a "fundamental flaw[]" in the
proceedings that did not require an objection (People v Becoats,
17 NY3d 643, 651 [2011], cert denied 132 SCt 1970 [2012]).
Toliver is easily distinguishable from the present case
because, first and foremost, it is not a mode of proceedings
case,2 because defense counsel registered an objection to the
2
In Toliver, defense counsel registered an objection on
the record to the fact that the trial judge had absented himself
while prospective jurors two through six were orally answering a
questionnaire, and also absented himself for all but the last
five minutes of the prosecutor's voir dire, calling it a
"delegation of judicial responsibility . . ." (212 AD2d 346,
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procedure employed by the trial judge. Moreover, we reversed in
Toliver on the ground that the trial judge's absence deprived the
defendant of his right to a jury trial because it is the trial
judge who makes the ultimate determination regarding a
prospective juror's fitness to serve (see Toliver, 89 NY2d at
845).
Here, the questioning concerning the prospective
jurors' fitness to serve had not yet begun when the court brought
up the issue of hardship. The trial court's hardship questioning
occurred before formal voir dire (see CPL 270.15), and focused on
matters that were extraneous to their fitness to serve and might
have led to a prospective juror's inability to serve because of
work commitments and family obligations. To find otherwise, in
reliance on CPL 270.15, would be to conflate a prospective
juror's inability to serve because of hardship unrelated to
"fitness."3
347-348 [1st Dept 1995], revd 89 NY 843).
3
In support of its contention that a procedure "similar"
to the trial court's procedure in this case has previously been
"struck down" as "improper" (dissenting op, at 9), the dissent
relies on People v Roblee (70 AD3d 225 [3d Dept 2009])--a case
where the defendant was charged with the assault of his
girlfriend. Roblee is distinguishable, however, because the
Appellate Division in that case concluded that the trial court's
blanket exclusion of prospective jurors who had been accused or
convicted of domestic violence, or any crime, deprived the
defendant of his right to have the jury "'selected at random from
a fair cross section of the community'" (id. at 228, quoting
Judiciary Law § 500). In addition, the defense attorney in
Roblee specifically objected to the court's procedure (see
Roblee, 70 AD3d at 229). Finally, the court's improper procedure
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CPL 270.15 expressly mandates that the trial court
direct that the names of at least twelve members of the panel be
drawn and called, at which time those members "shall take their
places in the jury box and shall be immediately sworn to answer
truthfully questions asked them relative to their qualifications
to serve as jurors in the action" (CPL 270.15 [1] [a]). We have
made it clear that once formal voir dire is commenced, the
defendant has a fundamental right to have it overseen by a judge
(see Toliver, 89 NY2d at 844).
Contrary to the dissent's contention that the court's
procedure deviated from CPL 270.15 (1) (a) (dissenting op, at 8),
formal voir dire had not commenced in this case when the court
inquired of the prospective jurors as to whether they had any
hardship. The trial court simply asked the prospective jurors --
none of whom had their names drawn or were called to the jury box
-- if they believed that they would be unable to serve because of
a hardship. At that point, there had been no inquiry into
whether these particular prospective jurors were fit to serve as
fair and impartial jurors (see CPL 270.15 [1] [a], [b], [c]); CPL
270.20); rather, the only inquiry by the court was whether, given
the length of the trial, any particular hardship would prevent
them from serving. Thus, while a defendant possesses a
"fundamental right" to have a judge supervise formal voir dire to
in Roblee addressed the prospective jurors' fitness to serve (see
CPL 270.15), as opposed to hardship (see Roblee, 70 AD3d at 229-
230).
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determine a prospective juror's fitness to serve (see Toliver, 89
NY2d at 844), a defendant does not possess a "fundamental right"
to have a judge oversee whether a prospective juror has issues in
his or her life that prevent them from sitting. This is
evidenced by the fact that both the trial judge and the
commissioner of jurors possess the authority to determine whether
"attendance for jury service in accordance with the summons would
cause undue hardship or extreme inconvenience" to the prospective
juror (Judiciary Law § 517 [c]; see 22 NYCRR 128.6-a [granting
the commissioner of jurors the discretion to excuse prospective
jurors from service and to grant postponements]).
We have acknowledged in a related context that a trial
court's consideration of a prospective juror's request to be
excused, which is made before the commencement of formal voir
dire, is not a material stage of the trial proceedings and the
defendant's presence is therefore not required (see People v
Velasco, 77 NY2d 469, 473 [1991]). If a defendant's presence at
a trial court's questioning of a prospective juror to determine
hardship does not constitute a material stage of the trial, it
follows that the procedure employed by the trial court in this
instance did not affect the organization of the court or the mode
of proceedings prescribed by law. As such, defendant was
required to preserve her objection to the trial court's
procedure.
Nor can it be said that the trial court "delegated" an
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exclusive judicial function to the clerk. Judiciary Law § 517
(c) grants to the commissioner of jurors or the court, in
deciding whether an application for excusal should be granted,
the authority to "consider whether the applicant has a mental or
physical condition that causes him or her to be incapable of
performing jury service or there is any other fact [which]
indicates that attendance for jury service in accordance with the
summons would cause undue hardship or extreme inconvenience to
the applicant . . ."
Defendant's right to a trial by jury was not impaired
by this procedure. At most, the trial court failed to adhere to
a statutory procedural protection; it did not relieve defendant
of her obligation to object to the court's procedure (see Kelly,
5 NY3d at 120; see also People v Casanova, 62 AD3d 88, 92 [1st
Dept 2009], lv denied 12 NY3d 852 [2009] [holding that
pre-screening procedure for hardship did not fall within the mode
of proceedings error exception]). Preservation is particularly
important in a case like this because the defense, faced with the
prospect that certain prospective jurors were claiming that they
were unable to serve due to hardship, may very well have made a
strategic decision not to challenge the procedure because he did
not want to risk having those prospective jurors end up on the
jury when it became apparent that they did not wish to serve. If
defense counsel had an objection to the procedure employed by the
trial court, he should have voiced it so that the court could
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have corrected any alleged error.
III.
Defendant's second contention is that the trial court
committed reversible error when it precluded her from introducing
evidence that she claimed demonstrated that people other than
defendant committed the crimes. She sought to introduce
testimony from a witness named "LeShay," who was expected to
testify that ten days prior to the burglary and assault, two men
approached her and LeShay. One of the men purportedly told them
that "Tone" had beat him up for "kilograms," and that it must
have been the victim who had "set him up to be robbed by Tone."
After the People rested, defense counsel argued that he
intended to call LeShay, who would testify that the two men
approached defendant and LeShay and said, "look, Tony Mann stole
our narcotics, we can't get at Tony Mann because Tony Mann is in
jail, but we can get at you." The trial court refused to allow
the testimony, finding it to be hearsay, not probative and too
speculative to demonstrate that the two men were involved in the
attack. The Appellate Division affirmed on those grounds (110
AD3d at 1006).
Before a trial court permits evidence that another
party committed the crime for which a defendant is on trial, "the
court must balance the probity of the evidence against the
prejudicial effect to the People" (People v Schulz, 4 NY3d 521,
528 [2005], citing People v Primo, 96 NY2d 351, 356 [2001]). The
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admission of such evidence "may not rest on mere suspicion or
surmise" (Primo, 96 NY2d at 357). Here, it cannot be said that
the trial court abused its discretion in not allowing the
proffered testimony.
IV.
Defendant's final argument is that she was deprived of
the effective assistance of counsel because her trial counsel
failed to object to the prosecutor's comments on summation that
appealed to gender bias and denigrated defendant's alibi defense.
"In order to sustain a claim of ineffective assistance of
counsel, New York courts must examine the trial as a whole to
determine whether defendant was afforded meaningful
representation" (Schulz, 4 NY3d at 530, citing People v
Benevento, 91 NY2d 708, 713 [1998]). "So long as the evidence,
the law and the circumstances of a particular case, viewed in
totality and as of the time of the representation, reveal that
the attorney provided meaningful representation, the
constitutional requirement will have been met" (People v Baldi,
54 NY2d 137, 147 [1981]).
The Appellate Division majority and dissenting Justice
were in agreement that the prosecutor's remarks concerning
defendant's gender were patently improper, but these observations
were made in the context of defendant's (unpreserved) argument
that prosecutorial misconduct deprived her of a fair trial. The
dissenting Justice would have reached the issue in the interest
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of justice (110 AD3d at 1006-1008). Nonetheless, defendant
raised her ineffective assistance of counsel claim on direct
appeal, and we therefore review it here.
Addressing first defendant's contention that defense
counsel was ineffective by failing to object to the prosecutor's
alleged denigration of defendant's alibi defense, we note that
the court interrupted the prosecutor after he made the allegation
that certain defense witnesses had not come forward until the day
before. The court explained that defendant had served notice of
the alibi defense prior to trial and that the People were not
surprised when the alibi witnesses testified on defendant's
behalf. The court explained that defense counsel was not
required to mention the alibi witnesses during his opening, and
that defendant was not required to present any evidence at trial.
The trial court's curative instruction -- which it gave on its
own volition -- alleviated any prejudice to defendant and
conveyed to the jury that alibi witnesses did not come forward at
the last minute.
Turning to defendant's next contention, we conclude
that the prosecutor's appeal to defendant's gender was
inexcusable and irrelevant, particularly since jealousy and rage
are emotions shared by both genders. Statements such as "only a
woman would inflict this kind of beating," "[t]his crime is a
woman" and "hell hath no fury as a woman scorned" are simply
ridiculous comments since men are equally capable of committing
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crimes in a jealous rage. We therefore agree with defendant that
the remarks were inflammatory and were improper summation.4 Our
decision should not be interpreted as countenancing such
summation remarks that appeal to gender stereotypes when
objections are raised, and trial courts should reprimand counsel
for making such remarks.
That being said, defense counsel's failure to object
during summation did not amount to ineffective assistance of
counsel such that a new trial is required. The remarks by the
prosecutor were so over the top and ridiculous that defense
counsel may very well have made a strategic decision not to
object to the inflammatory comments out of a reasonable belief
that the jury would be alienated by the prosecutor's boorish
comments. Defense counsel presented an alibi defense, attacked
the credibility of the People's witnesses, sought to introduce
third-party culpability evidence (albeit unsuccessfully), and
pointed out the lack of forensic evidence tying defendant to the
crime. Thus, it cannot be said that defendant did not receive
meaningful representation.
4
The overall thrust of the People's theory on summation --
that defendant was jealous of the victim's relationship with Tony
Mann and the crime was perpetrated by a jealous person (as
opposed to a stranger, which was the defense's theory) -- was
entirely proper in light of the People's evidence. That evidence
was that defendant had harassed the victim over the telephone for
several months, and that seven months before the incident at
issue on this appeal, defendant physically attacked the victim
because of the victim's relationship with Mann.
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Accordingly, the order of the Appellate Division should
be affirmed.
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People v Urselina King
No. 10
RIVERA, J.(dissenting):
I agree with the majority that defendant's third-party
culpability claim is without merit. However, I would reverse the
Appellate Division on the grounds that the jury selection process
employed by the judge violated the defendant's right to a trial
by jury, and defendant was denied a fair trial due to her defense
counsel's failure to object to the prosecution's inflammatory,
irrelevant, and prejudicial gender-based summation comments.
Therefore, I dissent.
I. IMPROPER DELEGATION OF A JUDICIAL FUNCTION
Defendant challenges the trial judge's jury selection
procedure of permitting prospective jurors to self-excuse from
jury service on hardship grounds. On the threshold preservation
question, defendant claims that counsel's failure to object is no
bar to our review of her claim because the challenged procedure
excluded the judge from an integral part of the defendant's
criminal trial, in violation of her constitutional right to trial
by jury, and therefore constitutes a mode of proceeding error.
These arguments find support in our case law and applicable
statutes.
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A mode of proceedings error is one that "affects 'the
organization of the court or the mode of proceedings pr[e]scribed
by law'" (People v Walston, 23 NY3d 986, 991 [2014], quoting
People v Patterson, 39 NY2d 288, 295 [1976]). It is "a 'very
narrow exception' to the rule that errors made by a trial court
may not be raised on appeal unless they are preserved at trial by
timely objection" (id.) and is "reserved for the most fundamental
flaws" (People v Becoats, 17 NY3d 643, 651 [2011]). A judge's
delegation of judicial oversight of a criminal trial may impact a
defendant's constitutional rights and thus fall within the narrow
exception to our preservation rule (People v Ahmed, 66 NY2d 307,
310 [1985]).
This Court has made abundantly clear that "[t]he presence of
and supervision by a Judge constitutes an integral component of
the right to a jury trial" (People v Toliver, 89 NY2d 843, 844
[1996], citing Ahmed, 66 NY2d at 311-312; People v Torres, 72
NY2d 1007, 1008-1009 [1996]).
"Since the selection of the jury is part of
the criminal trial . . . a defendant has a
fundamental right to have a Judge preside
over and supervise the voir dire proceedings
while prospective jurors are being questioned
regarding their qualifications. A Judge who
relinquishes control over the proceedings or
delegates the duty to supervise deprives a
defendant of the right to a trial by jury,
requiring reversal"
(Toliver, 89 NY2d at 844 [internal citations omitted], citing
People v Velasco, 77 NY2d 469, 472 [1991]; People v Mullen, 44
NY2d 1, 4 [1978]). Moreover, general questioning that leads to
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"the determination that a prospective juror [i]s disqualified
before voir dire [i]s a matter for the court" (Velasco, 77 NY2d
at 473). Based on these cases, in accordance with our
recognition of the "constitutional guarantee of trial by jury"
(Ahmed, 66 NY2d at 310) and a defendant's fundamental right to
judicial oversight of jury selection, a judge's failure to
supervise questioning of prospective jurors regarding lawful
hardship grounds for exclusion from the petit jury, such as
occurred here, constitutes a mode of proceedings error that is
reviewable by this Court, notwithstanding counsel's failure to
object.
The majority concludes otherwise because, according to my
colleagues, the defendant's right to a trial by jury was not
impaired by the procedure complained of since the hardship
question posed by the judge preceded questioning regarding the
jurors' fitness to serve and formal voir dire (maj opn at 10).
The distinction drawn by the majority is meaningless and contrary
to prior case law, which establishes that the duty to control
jury selection attaches before the commencement of voir dire and
includes determinations about the ability to serve (Velasco, 77
NY2d at 473 [1991] ["determination that a prospective juror was
disqualified before voir dire was a matter for the court"];
People v Stiggins, 1 NY3d 529, 530 [2003] [prosecutor's
assistance to the judge throughout the jury selection, including
prior to voir dire, "resulted in the judge 'relinquish(ing)
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control' over the jury selection process"] [modification in the
original]).
Regardless of whether the issue before the court is a
prospective juror's "fitness to serve" or a hardship excuse, and
whether the questions are posed before or during voir dire, what
matters is whether the judge is absented from questioning
designed to lead to the judge's determination of whether a
prospective juror should be relieved from service on defendant's
jury. A judge's failure to supervise such questioning impacts a
defendant's right to a jury trial, and, as such, implicates the
mode of proceedings prescribed by law.
By way of example we need only consider a comparison of the
procedure followed here to that in People v Velasco. In Velasco,
after the jury panel was sworn en masse, the judge asked general
questions of the prospective jurors "designed to search out
matters which might lead to disqualification, including physical
impairments, family obligations, and work commitments" (77 NY2d
at 472-473). The judge then allowed those prospective jurors
wishing to respond to approach the bench and discuss the matter
with the judge, in the presence of the prosecutor and defense
counsel. This Court acknowledged the propriety of this process
and the trial court's ultimate decision-making role in jury
selection (id. at 473). As the Court has since noted, Velasco
involved questions "relating only to the qualifications of jurors
in the general sense--questions concerning such matters as
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physical impairments, family obligations, and work commitments"
(People v Sloan, 79 NY2d 386, 392 [1992]). Upon consideration of
those questions, the Velasco Court "pointed out that the
decisions of whether to excuse jurors on the grounds explored by
such pre-voir dire screening were matters solely for the court"
(id. at 392; Velasco, 77 NY2d at 473).
The procedure adopted by the Court in defendant's case is
dissimilar to that followed in Velasco in significant, and, for
purposes of our review of defendant's appeal, ultimately
determinative ways. As the record establishes, the judge began
the jury selection process by telling the prospective jurors the
name of the case and describing jury selection as a process by
which the judge and attorneys ask questions of prospective
jurors. The judge stated that "to begin this process of asking
you questions and getting truthful answers from you the law
requires that you swear or affirm to answer those questions
truthfully." The clerk then swore in the prospective jurors.
The judge continued, introduced the attorneys and counsel, and
asked if any prospective jurors knew them. In discussing the
expected length of the trial, the judge broached the matter of
potential excusal from service. He said that he knew the
prospective jurors' participation in the trial was a sacrifice,
and that for some it "may be a hardship" because of "family
obligations" or "business commitments," and that he could excuse
individual jurors from participation in defendant's trial on
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those hardship grounds. He then asked those prospective jurors
who believed that jury service would be a hardship to identify
themselves by raising their hands. The judge directed those with
their hands raised to leave the courtroom and step outside into
the hallway where "the clerk will speak to you about your
hardship." From the record it is clear that some prospective
jurors raised their hands, went outside, and did not return for
further questioning regarding their potential service on the
petit jury.
Thus, rather than discussing with these prospective jurors
the nature of their claimed hardship--as in Velasco--the judge
permitted off-the-record conversations with a clerk about the
basis for hardship excuses, outside of the judge's presence and
without counsels' participation. Yet, as our cases establish, a
judge is solely responsible for supervision of jury selection and
may not delegate individual juror qualification determinations
(see Toliver, 89 NY2d at 844; Sloan, 79 NY2d at 392; Velasco, 77
NY2d at 473).
Moreover, under the Judiciary Law and the implementing
regulations, a judge is statutorily obligated to make
individualized hardship assessments and cannot grant a
prospective juror's application to be excused without giving some
consideration to the juror's reasons for the request. Judiciary
Law § 517 provides that a judge may exercise discretion to excuse
a juror from service. In determining whether to grant excusal
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from jury service on hardship grounds, a judge "shall consider
whether . . . there is any other fact which indicates that
attendance for jury service in accordance with the summons would
cause undue hardship or extreme inconvenience to the applicant, a
person under his or her care or supervision, or the public," and
shall be guided by standards promulgated by the Chief
Administrator of the Courts (Judiciary Law § 517 [c]). Those
standards provide a nonexhaustive, suggested list of categories
of permissible excuses, such as service as a caregiver, financial
hardship, and matters of conscious (22 NYCRR § 128.6-a [II] [B]).
These categories by their nature require some inquiry from the
judge as to the underlying facts of the applicant's request.
Thus, by the plain language of the Judiciary Law and the
administrative regulatory standards, a determination to grant a
hardship excuse requires judicial exercise of discretion based on
consideration of the individual prospective juror's
circumstances.
The majority misconstrues Judiciary Law § 517 in support of
its erroneous conclusion that the judge did not delegate an
exclusive judicial function to a clerk (maj opn at 11). Under
the majority's analysis defendant does not have a fundamental
right to judicial oversight of hardship determinations because
the law permits a trial judge as well as the commissioner of
jurors to grant requests to be excused from jury service for
hardship (maj opn at 10-11). This ignores the simple fact that
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once the prospective jurors are brought before the judge, it is
the judge who decides the application for a hardship excuse from
service in defendant's trial specifically (CPL 270.15 [1] [a];
Velasco, 77 NY2d at 473). As the record establishes, the judge
in defendant's case understood this was the nature of his
authority as he alerted the prospective jurors that he was able
to excuse them "from this trial." In exercising that authority,
the judge would necessarily base the hardship determination on a
prospective juror's personal situation, which could be affected
by factors relevant to the particulars of defendant's case, such
as the expected length of the trial. Nothing in the law suggests
that the commissioner has authority to supplant or supercede the
judge's determination, or that the judge's decision is any less
"a matter for the court."
The procedure followed in defendant's case also deviated
from the procedure set forth in CPL 270.15 (1) (a), which
concerns the examination of prospective jurors. Under that
provision, no less than 12 persons shall be seated in the jury
box and "immediately sworn to answer truthfully questions asked
them relative to their qualifications to serve as jurors in the
action." Here, the judge swore in the prospective jurors before
seating any person in the jury box. Moreover, CPL 270.15 (1) (a)
requires that the judge make inquiries of the seated jurors about
any fact relevant to their prospective jury service, and permits
the judge to use a questionnaire to gather information for this
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purpose. The questionnaire responses are also provided to each
attorney. Counsel thereafter has the opportunity to examine the
prospective jurors. Thus, in accordance with this procedure,
once the judge swears in a prospective juror, the judge makes
general inquiries, followed by more specific questions as
necessary, counsel has access to that information, there may be
questioning by counsel, and then the court makes the final
determination about the prospective juror's ability to serve on a
defendant's jury. It may well be that the judge accepts the
juror's hardship ground, but a blanket hardship excuse without
judicial consideration is not provided for by our laws.
Indeed, the Third Department in People v Roblee (70 AD3d
225, 229 [3d Dept 2009]) struck down as improper a pre-voir dire
selection procedure similar to that adopted in defendant's case.
In Roblee, the court asked a group of prospective jurors to raise
their hands if one of a number of disqualifying conditions
applied to them: they had a serious health issue; knew the
defendant, defense counsel, District Attorney, or Assistant
District Attorneys involved in the case; if they, or a close
friend or relative had been accused, convicted, or the victim of
domestic violence or any other crime; or if they had immediate
reasons, personal or business, which would keep them from serving
as jurors. The court informed the prospective jurors that it and
the parties would speak with anyone who raised their hands, but
the court first asked those who had identified themselves to step
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aside, with the provision that they would be called back if they
were needed. However, voir dire was concluded without recalling
or speaking further with those prospective jurors (id.). As the
Third Department noted, "[t]he proper practice would be for the
court to immediately follow up with those potential jurors to
identify their specific problems and determine whether those
individuals should remain in the pool or be excused" (id., citing
People v Henderson, 45 AD3d 903, 904 [2007]; People v Gayle, 238
AD2d 133, 133-134 [1997], lv denied 90 NY2d 893 [1997]; Judiciary
Law § 518).
As we have previously held, the fact that counsel may have
consented, either affirmatively or by failing to object, does not
constitute a waiver of the instant challenge to the judge's
procedure. Instead, to effectuate a valid waiver of the right to
a trial by jury, a defendant must sign a written waiver "in
person in open court in the presence of the court, and with the
approval of the court" as required by CPL 320.10 (2) (Ahmed, 66
NY2d at 311 [internal quotation marks omitted], citing CPL 320.10
[2]).
In addition to constituting a violation of the defendant's
constitutional right to trial, the judge's practice resulted in a
jury constituted in violation of this State's policy that "all
litigants in the courts of this state entitled to trial by jury
shall have the right to grand and petit juries selected at random
from a fair cross-section of the community ... and that all
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eligible citizens ... shall have an obligation to serve when
summoned for that purpose, unless excused" (Judiciary Law § 500).
Even if service seems unjust because of the sacrifice involved
"it is necessary as long as we are to persist in our cherished
belief that an accused felon is entitled to be tried by a jury of
. . . peers" (People v Michael, 48 NY2d 1, 10 [1979]). The
United States Supreme Court likewise has recognized that "[j]ury
service is a duty as well as a privilege of citizenship; it is a
duty that cannot be shirked on a plea of inconvenience" (Thiel v
S. Pac. Co., 328 US 217, 224 [1946]).
Under the circumstances presented in defendant's case, I
would find that the judge committed a mode of proceedings error
when he abdicated his role in supervising the questioning that
would serve as the basis for a determination on whether any of
the prospective jurors should be excused on the grounds of
hardship. Whereas in Velasco the judge was in control of the
pre-voir dire screening and relied on the responses solicited
during that procedure to make a judicial determination on the
individual prospective jurors' ability to serve, here the judge
wholly relinquished his supervisory role to a clerk after
inviting prospective jurors to assess the existence of a personal
hardship warranting excusal from service on defendant's jury.
That procedure is impermissible and violated the defendant's
right to a jury trial. Harmless error analysis is inapplicable
(People v Anderson, 70 NY2d 729, 730-731 [1987]; Hildreth v City
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of Troy, 101 NY 234, 239), and the violation requires reversal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant's additional claim that she was denied a fair
trial because defense counsel was ineffective for failing to
object to various inflammatory gender-based comments during the
prosecutor's summation provides an alternative ground for
reversal. While not every offensive comment or out-of-bounds
remark by a prosecutor on summation, gone unchallenged, will
serve to elevate defense counsel's misstep to an error of
constitutional proportion, counsel's silence in defendant's case
during the prosecutor's summation permitted statements to the
jury that were deeply prejudicial to the defense. The record
establishes that in his closing statement the prosecutor relied
on gender stereotypes intended to undermine the defendant's case
by denigrating the defendant and women as a class, and
simultaneously sought to shore up the credibility of the People's
sole witness. No defense strategy could be furthered by the
prosecutor's remarks, and therefore defense counsel was
ineffective for failing to object.
Under the State standard for ineffective assistance of
counsel, in reviewing the representation provided to defendant,
the Court must look to counsel's performance in its totality (see
People v Baldi, 54 NY2d 137, 147 [1981]), to determine whether
defendant received meaningful representation (see People v
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Benevento, 91 NY2d 708, 712 [1998]). Under the more exacting
federal standard, the defendant must establish that counsel's
assistance was deficient and that the errors were prejudicial, in
that they were "so serious as to deprive the defendant of a fair
trial" (Strickland v Washington, 466 US 668, 687 [1984]). A
claim of ineffectiveness based on
"[d]efense counsel's inaction in the face of
prosecutorial misconduct made during closing
argument is subject to the same 'meaningful
representation' standard applicable to other
trial errors. Under that standard, where
defense counsel fails to object when faced
with a pattern of prosecutorial misstatements
far afield from acceptable argument, such as
statements that misrepresent evidence central
to the determination of guilt, and where
there is no apparent strategic explanation
for defense counsel's silence, defendant has
been deprived of meaningful representation
and the constitutional right to a fair trial"
(People v Wright, 25 NY3d 769, 780 [2015]; see also People v
Fisher, 18 NY3d 964, 967 [2012] ["defense counsel's failure to
object to any, let alone all, of the prosecutor's egregiously
improper departures during summation, particularly in the highly
charged, potentially outcome determinative context in which they
occurred, deprived defendant of the right to effective assistance
of counsel"]).
The majority concludes that "the prosecutor's appeal to
defendant's gender [is] inexcusable and irrelevant," the
statements about the gendered nature of the crime and the
perpetrator "are simply ridiculous comments," and the
prosecutor's "remarks were inflammatory and were improper
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summation" (maj opn at 16). The majority further states that its
"decision should not be interpreted as countenancing such
summation remarks," and that trial courts "should reprimand
counsel for making such remarks" (maj opn at 16). I agree, and
find unfathomable the majority's conclusion that counsel was not
ineffective for failing to object to these obviously
"inflammatory," "irrelevant," and "ridiculous" comments, that in
the future will subject counsel to judicial reprimand. The sole
basis for the majority's conclusion is its speculation that
defense counsel may have reasonably believed the prosecutor's
remarks would alienate the jury, and counsel's silence was a
strategic choice (maj opn at 16). That conclusion is not
plausible given the history of sex discrimination in the justice
system, as well as the nature of the summation comments presented
in this appeal and their impact on the defense and the People's
case.
As a starting point, certain foundational matters should
guide this Court's analysis of defendant's claim. Foremost is
the fact that "our Nation has had a long and unfortunate history
of sex discrimination" (Frontiero v Richardson, 411 US 677, 685
[1973]), and that inequality based on gender was often legally
sanctioned (see e.g. Nevada Dept. of Human Resources v Hibbs, 538
US 721, 729 [2003] ["The history of the many state laws limiting
women's employment opportunities is chronicled in--and, until
relatively recently, was sanctioned by--this Court's own
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opinions"]; United States v Virginia, 518 US 515, 531 [1996]
["Through a century plus three decades and more of that history,
women did not count among voters composing 'We the People'; not
until 1920 did women gain a constitutional right to the
franchise. And for a half century thereafter, it remained the
prevailing doctrine that government, both federal and state,
could withhold from women opportunities accorded men so long as
any 'basis in reason' could be conceived for the
discrimination."] [internal citations omitted]; Martha Chamallas,
The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa.
Law Rev. 463, 463 nn 1, 2 [historically, only men could sue for
loss of consortium or loss of a child's services]).
Over time society's appreciation of this history and its
impact on society and individuals has only deepened. The
enduring role of gender stereotypes and bias reminds us that it
is not so easy to ignore over a century of discrimination. We do
not simply wake up one morning to find, as if by magic, that our
communities are gender bias-free, and that individuals and the
collective population have been able to cleanse the taint of
discrimination. Rather, gendered perceptions of women's roles
and abilities continue to plague workplaces, homes, and our
justice system (see e.g. Burlington N. and Santa Fe Ry. Co. v
White, 548 US 53, 70 [2006] [reassignment of plaintiff to less-
desirable job duties and 37 days of suspension without pay
sufficed to support a claim for retaliation under Title VII for
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plaintiff's reporting of her supervisor's derogatory gender-based
comments]; Back v Hastings On Hudson Union Free School Dist., 365
F3d 107, 120 [2d Cir 2004] ["stereotyping in the view that a
woman cannot 'be a good mother' and have a job that requires long
hours, or in the statement that a mother who received tenure
'would not show the same level of commitment [she] had shown
because [she] had little ones at home,' could establish gender
discrimination under the Equal Protection Clause]; Hibbs, 538 US
at 736 ["Stereotypes about women's domestic roles are reinforced
by parallel stereotypes presuming a lack of domestic
responsibilities for men. Because employers continued to regard
the family as the woman's domain, they often denied men similar
accommodations or discouraged them from taking leave."]; see also
ABA Presidential Task Force on Gender Equity and the Commission
on Women in the Profession, Closing the Gap: A Road Map for
Achieving Gender Pay Equity in Law Firm Partner Compensation
[2013]; Ronit Dinovitzer, Nancy Reichman, and Joyce Sterling, The
Differential Valuation of Women's Work: A New Look at the Gender
Gap in Lawyers' Incomes, 88 Social Forces 819 [2009]; Molly
McDonough, Damaging Disrespect: Minorities and Women Still
Experience Bias in the Justice System, Though It Isn't Always
Obvious, 89 ABA Journal 56 [2003]; The Honorable Dorothy W.
Nelson, Introduction to the Effects of Gender in the Federal
Courts: the Final Report of the Ninth Circuit Gender Bias Task
Force, 67 S. Cal. Law Rev. 731 [1994]).
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In recognition of the continued presence of sex
discrimination in our society, our courts have sought to address
inequality in the justice system by addressing gender stereotypes
in the courtroom (see e.g. J.E.B. v Alabama ex rel. T.B., 511 US
127, 129 [1994] [declaring that peremptory challenges based on
"gender, like race, is an unconstitutional proxy for juror
competence and impartiality"]; New York State Judicial Committee
on Women in the Courts, Women in the Courts: A Work in Progress
[April 2002]; National Judicial Education Program, Gender
Fairness in the Courts: Action in the New Millennium [Nov. 1,
2001]). Those efforts are part of the broader commitment to
create courtrooms free of discrimination and bias, and a legal
system based on just treatment.
Thus, to ensure a defendant's trial is fair and that
prejudice does not affect the outcome, a prosecutor may not rely
on stereotypes as part of the People's case. As a general
matter, courts have recognized a prosecutor's summation that
"appeal[s] to prejudice and passion . . . violates every basic
concept of fair trial" (People v Hearns, 18 AD2d 922, 923 [2d
Dept 1963] [prosecutor's summation which emphasized that
defendant and two key witnesses were of the same race was
impermissible]). Reliance on impermissible characteristics,
"impermissibly alter[s] the jurors' view of both the [defendant]
and the issues" (Glenn v Bartlette, 1996 WL 648679, *9 [NDNY Oct.
31, 1996] [prosecutor's introduction of race to the proceedings
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in combination with other violations necessitated the grant of
habeas corpus and a new trial], affd sub nom. Glenn v Bartlett,
98 F3d 721 [2d Cir 1996]).
While our courts have had occasion to comment specifically
on references to race and sexuality in the courtroom, the
concerns that underlie those cases are no less applicable to a
prosecutor's deployment of stereotypes about women. Thus,
judicial considerations of the propriety of those comments,
particularly those contained in prosecutor summations, should
guide analysis of defendant's case. As those cases instruct,
summation grounded in offensive and biased argument "creates the
grave danger that jurors will be distracted from evaluating a
case strictly on the basis of the evidence presented and will
instead approach the evidence from the point of view of biases
triggered by racially influenced fears or prejudices" (People v
Rivera, 136 AD2d 520, 521 [1st Dept 1988], affd, 73 NY2d 941
[1989]). There is no place in a trial for remarks that attempt
to make a connection between defendant's group association and
certain criminal activities because those comments "appeal to the
fears and prejudices of the jury . . . and [are] designed to
sidetrack the issue way from defendant's guilt or innocence"
(People v De Vito, 21 AD3d 696, 700 [3d Dept 2005]). Thus, an
appeal to the jury based on stereotyping "can serve no purpose
other than to arouse racially prejudiced attitudes and to
undermine the jury's dispassionate and objective consideration of
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the evidence adduced at trial" (People v Thomas, 129 AD2d 596,
597 [2d Dept 1987]). As such, argument based on stereotype is
divisive and "offends the democratic and logical principle that
race, creed or nationality, in themselves, provide no reason for
believing or disbelieving a witness' testimony" (Hearns, 18 AD2d
at 923; see also McFarland v Smith, 611 F2d 414, 416-417 [2d Cir
1979] ["(t)o raise the issue of race is to draw the jury's
attention to a characteristic that the Constitution generally
commands us to ignore. Even a reference that is not derogatory
may carry impermissible connotations, or may trigger prejudiced
responses in the listeners that the speaker might neither have
predicted nor intended"]).
Defendant claims that a competent attorney would have
realized that the prosecutor's comments were objectionable and
detrimental to the defendant, given the gendered nature of the
remarks and their prejudicial impact on her defense. Defendant
asserts that her attorney should have objected to the
prosecutor's statements that the case was "about jealousy, it's
about rage, it's about obsession. . . . It's about hell have
[sic] no fury as a woman's scorn [sic]," that "[o]nly a woman
would inflict this kind of beating. Only a woman who is trying as
hard as she can to maim and disfigure her rival and to have an
avenue for her rage and her jealousy would cause this kind of
injury." She further complains that counsel failed to stop the
prosecutor from arguing that it was significant that the attack
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took place in the complainant's apartment because "[i]t's a good
location for a woman trying to take out her shame and rage and
her jealousy on the face of her rival."
The prosecutor's assertions that only a woman could inflict
the type of harm evidenced in this case, and that the injury
could only be caused by a woman trying to disfigure her rival,
were statements grounded in unfounded gender stereotypes which,
as the majority concedes, were improper summation (maj opn at
16). As the record establishes, the prosecutor exhorted the
jurors to rely on gender stereotypes of vengeful spurned women
and argued without any record evidence that the crimes could only
be committed by a woman, but not just any woman. The prosecutor
claimed that the crime had to have been committed by a particular
type of woman, namely a scorned woman who would do anything
against another who was romantically involved with her man. Of
course, these stereotypes have no grounding in fact and certainly
not in any evidence placed before the jury during the trial. As
the majority acknowledges, these types of remarks are
"inflammatory" and "simply ridiculous" (maj opn at 16).
However, the comments are impermissible not solely because
they are offensive, but because they associate particular
criminal conduct with a defining group characteristic specific to
defendant, namely her gender. Courts have rejected affinity
group classifications because of their potential impact on the
ultimate determination of guilt (United States v Rodriguez
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Cortes, 949 F2d 532, 541-542 [1st Cir 1991] [error to admit
identification care showing defendant to be Colombian as "the
effect . . . was to allow the jury to determine guilt based on
(defendant's) supposed nationality"]; United States v Doe, 903
F2d 16, 21-22 [DC Cir 1990] ["It is much too late in the day to
treat lightly the risk that racial bias may influence a jury's
verdict in a criminal case."]; Carter v Rafferty, 621 F Supp 533,
546 [DNJ 1985] ["The prosecutor, . . . without basis in the
record, imputed the 'powerful motive of revenge' on the entire
black community, and thus on the petitioners. This despite the
absence of any evidence of either petitioner having such racial
hatred."], affd in part, appeal dismissed in part, 826 F2d 1299
[3d Cir 1987]).
Moreover, because defendant presented an alibi defense, the
case came down to a credibility determination, requiring the jury
to decide whether to believe the complainant or defendant. Thus
the prosecutor's comments that sought to paint defendant as a
violent harpy and the complainant as a vulnerable and stalked
woman, were designed to make defendant appear less believable
while also enhancing the complainant's credibility. One of the
most difficult stereotypes to unsettle is that of the weak,
desperate, needy, helpless woman. Part of the prosecutor's
summation relied on that stereotype to make the complainant
sympathetic and more credible to the jury. The prosecutor asked
the jury to
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"[i]magine what [the victim] must have felt
the first time she looked at herself in the
hospital mirror. Every one of those blows,
with the exception of her hand, where she got
stepped on and her stomach, where she was
stood on, before she got dragged inside the
apartment, to her face, her hair, her head.
This crime is a woman [sic]."
The prosecutor contrasted the complainant's weak position to that
of the defendant who the prosecutor argued
"wants to wait until [the complainant] has no
escape. She can almost get inside the
apartment. She can almost get down the
stairs. . . . She is trapped in this tiny
little landing with the keys in the door. No
where to run. That's the kind of fear
[defendant] was trying to put in [the
complainant's] heart."
Use of gendered stereotypes to enhance the credibility of a
witness is impermissible (Rivera, 136 AD2d at 521; Hearns, 18
AD2d at 923; McFarland v Smith, 611 F2D 414, 419 [2d Cir 1979]
["The credibility of the state's witness[] should depend on an
assessment of many pertinent factors, but the state should not be
entitled to have its witness's credibility enhanced simply
because they are not members of a group that might be prejudiced
against the defendant."]). All the more so where the case turns
on the credibility of the sole witness (People v Robinson, 17
NY3d 868, 870 [2011]).
No defense strategy explains allowing without objection this
double harm to the defense, not even the strategy identified by
the majority, namely that the prosecutor's comments were so
offensive that they would alienate the jury (maj opn 16-17).
This would have been a nonsensical response to the summation
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because it allowed the prosecutor to draw from the well of
gendered images of women as both vengeful and vulnerable,
predator and prey. Moreover, assuming, as the majority does,
that the jury might be offended by the prosecutor's comments,
that does not mean defendant would gain a tactical advantage.
Defendant and the complainant are both women and the jury could
just as well have viewed both as mistreated by the prosecutor,
allowing the People to draw on the jury's sympathies for the
complainant. Thus, whether the jury embraced the stereotypes or
rejected them outright, there was a potential upside to be gained
for the prosecutor's case, and no disadvantage to objecting.
There is yet another reason to reject the argument that
defense counsel made a strategic choice not to challenge the
prosecutor's remarks. If the jury was repulsed by the
prosecutor's characterizations of women, then by his silence
defense counsel risked the appearance that he condoned the
remarks, possibly drawing the ire of the jurors. If, instead, he
stood up for his female client, he would be viewed no worse by
the jury, and perhaps considered more favorably. Therefore,
contrary to the majority's opinion, objecting was the only proper
defense strategy because it would have avoided any negative
perceptions of the defendant and her defense counsel and
potentially enhanced counsel's standing in the eyes of the
jurors.
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* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Pigott. Judges Abdus-Salaam,
Stein and Fahey concur. Judge Rivera dissents in an opinion.
Chief Judge DiFiore and Judge Garcia took no part.
Decided March 29, 2016
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