People v. Libbett

Hancock, Jr., J. P., and Moule, J. (dissenting).

In our opinion, the concededly improper closing remarks by the Assistant District Attorney are not so flagrant, particularly when viewed in the light of the evidence and defense counsel’s closing argument, as to warrant a reversal (see, generally, People v Carelock, 58 AD2d 996; People v Murphy, 53 AD2d 937). ¶ In both his opening and summation, defense counsel adopted the position that it was defendant rather than the complaining witness who was the victim. He argued that the matter had already caused defendant a great deal of embarrassment and that “all the resources of the District Attorney’s office and police agencies [had] been used against [defendant] in this case” and that the testimony of the complaining witness and her mother was not worthy of belief and consisted of lies. As part of this strategy, defense counsel on cross-examination of the People’s first witness injected the fact of defendant’s prior acquittal of the rape and kidnapping charges by a Judge sitting without a jury. With this evidence in the record defense counsel in his last remarks during summation said: *707“Justice prevailed in this very courtroom when [defendant] was found not guilty of rape and kidnapping charges by Judge Hurlburt in this very courtroom and justice will prevail again after you deliberate this case because of the evidence.” The fact of defendant’s acquittal on the rape and kidnapping charges was irrelevant to the question of whether he was guilty of bribery, and any suggestion that the jury should draw an inference from the prior acquittal was improper. While the prosecutor should have been permitted some latitude in answering these remarks, his summation went beyond proper comment. Nevertheless, there was no motion for a mistrial, and the case was submitted to the jury in a charge to which no exception was taken. From the evident care with which the jury conducted its deliberations (it deliberated for approximately five and one-half hours, during which it returned on five separate occasions to have testimony read and for answers to questions concerning the court’s instructions as to bribery) there is no reason to believe that the remarks “sidetrack[ed] the jury from its basic mission of determining the facts relevant to guilt or innocence” (People v Alicea, 37 NY2d 601, 605). (Appeal from judgment of Onondaga County Court, Van C. Auser, J. — bribing witness.) Present — Hancock, Jr., J. P., Callahan, Denman, O’Donnell and Moule, JJ.