People v. McCormick

Green, J. (dissenting).

I must dissent. Defendant was denied her constitutional right to a fair trial by the abusive, flagrant and unprovoked misconduct *724of the prosecutor. The fact that defense counsel did not object to some of the prosecutor’s remarks does not preclude us from reaching the merits of defendant’s claims as a matter of discretion in the interest of justice (see People v Balkum, 94 AD2d 933; People v Santiago, 78 AD2d 666; GPL 470.15, subd 6). 11 Defendant was convicted of two counts of robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]), and one count of assault in the second degree (Penal Law, § 120.05, subd 2) as a result of a fight in the ladies’ room of a restaurant on New Years’ Eve, 1982. The victim alleged that another woman, aided by the defendant, punched, kicked and bit her, banged her head against the bathroom wall and stole money from her purse. The victim received a lump on her forehead and scratches on her face and neck. Defendant took the stand and denied these allegations. Thus, as the Second Department observed in a similar context, “this is a case which, in effect, could have tried itself” (People v Stewart, 92 AD2d 226, 227). 11 Defendant was deprived of a fair trial because of the cumulative impact of the following errors. During cross-examination of the defendant, the prosecutor repeatedly forced the defendant to characterize the prosecution’s witnesses as liars (see People v Bailey, 58 NY2d 272; People v Herlan, 99 AD2d 647; People v Balkum, supra; People v Ochoa, 86 AD2d 637; cf. People v Galloway, 54 NY2d 396) and improperly questioned the defendant about prior bad acts (see People v Ventimiglia, 52 NY2d 350, 359-360; People v Molineux, 168 NY 264, 291-293; cf. People v Sorge, 301 NY 198, 200-201). During summation, the prosecutor improperly vouched for the credibility of his witnesses (People v Blackman, 88 AD2d 620, 621; People v Ochoa, supra; People v Santiago, supra), commented on matters not in evidence (see People v Pavao, 59 NY2d 282, 293; People v Mott, 94 AD2d 415, 416) and made inflammatory and denigrating remarks about the defendant (see People v Stewart, supra, at pp 230-231). H While I see no useful purpose in further detailing the misconduct of the prosecutor, two observations by the Court of Appeals are worth noting. First “[fit is not enough for [a District Attorney] to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result” (People v Zimmer, 51 NY2d 390, 393). Equally important is the notion that “[cjriminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct, impertinent counsel and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining the facts relevant to guilt or innocence. Although every trial may not be impeccably conducted and free of some error, we will not tolerate trials where unadulterated unfairness and deceit have become the rule. Evenhanded justice requires more and, as the ultimate guardian of the rights of the People and defendants in the State, we have a right to expect more” (People v Alicea, 37 NY2d 601, 605). 11 Since the right of the defendant to a fair trial must be respected without reference to the proof of defendant’s guilt (People v Alicea, supra) the judgment of conviction should be reversed and a new trial ordered. (Appeal from judgment of Onondaga County Court, Hurlbutt, J. — robbery, second degree and assault, second degree.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and Moule, JJ.