People v. Farmer

Thompson, J.,

dissents, and votes to affirm the judgment, with the following memorandum: In my considered opinion, the comments of the prosecutrix during summation, branded as improper and prejudicial by the majority, do not warrant reversal of the defendant’s conviction. Accordingly, I dissent and vote to affirm the judgment under review.

When the evidence in this case is viewed in a light most favorable to the People (see, People v Contes, 60 NY2d 620, 621; People v Kennedy, 47 NY2d 196), and the prosecution is given the benefit of every reasonable inference to be drawn therefrom (see, People v Morgan, 66 NY2d 255, 256; People v Lewis, 64 NY2d 1111, 1112), I find that the proof adduced at trial overwhelmingly established the defendant’s guilt beyond a reasonable doubt. Therefore, even if we were to assume that the comments of the prosecutrix in issue went beyond the limits of propriety, the errors, if any, are harmless and did not serve to deprive the defendant of a fair trial (see, People v Crimmins, 36 NY2d 230; People v Brosnan, 32 NY2d 254, 262).

*805Prefatorily, I would observe that the defendant, by failing to object, has failed to preserve for appellate review the issue of the propriety of the prosecutrix’s reference to the "so-called alibi” (CPL 470.05 [2]). I am further of the view that those remarks were not so egregious as to have rendered the trial unfair. While the prosecutrix’s attempt to discredit the defendant’s defense might have been more artfully stated, the two isolated comments in the course of a protracted summation are an insufficient predicate for reversal. The prosecutrix was merely attempting to point out the weaknesses in the defendant’s alibi defense and, therefore, "did not exceed the broad bounds of rhetorical comment permissible in closing argument” (People v Galloway, 54 NY2d 396, 399). It follows that this court should not exercise its discretionary power to reverse in the interest of justice on this ground (CPL 470.15 [6] [a]).

The remaining prosecutorial remarks with which the defendant takes issue must be reviewed against the governing principles of law. We recently noted that reversing for prosecutorial misconduct and ordering of a new trial for a defendant who was fairly convicted operates to punish the victim and witnesses as well as society through additional inconvenience and expense (People v Roopchand, 107 AD2d 35, 36-37, affd 65 NY2d 837). In this regard, it has frequently been stated by the courts that invocation of the remedy of a new trial is an ill-suited. sanction to insure nonrepetition of the misconduct (see, e.g., People v Galloway, supra, at p 401; People v Roopchand, supra, at p 36). Directing a new trial under such circumstances does not affect the prosecutrix directly and so does not cure the ill upon which the reversal is predicated.

Viewed in this context, the comments of the prosecutrix with respect to the complainant’s motive to lie, even if improper, are not grounds for reversal. I believe the opinion of the majority overstates the prejudice suffered by the defendant. During defense counsel’s summation, she exploited the differences in the police testimony and police report identifying an individual named "Leroy” as the perpetrator of the assault and the complainant’s own testimony that he did not say "Leroy” shot him. She further emphasized the fact that the complainant never corrected the police identifying "Leroy” as the assailant. While the summation of the defense counsel developed the theory of mistaken identification, it also rather harshly attacked the credibility of the complainant. In fact, since defense counsel was confronted with two versions of the facts, the strongest defense was to urge the jury to infer *806that the complainant had changed his story. I do not believe there would have been any other means to reconcile the conflicts in the testimony. This is the route defense counsel followed. Consequently, the evidence and the defense summation provided a fair basis for commenting on complainant’s motive to lie. The prosecutrix’s hypothesis of a defense that the complainant was "intentionally lying” is concededly somewhat strongly stated; it is not, however, intentionally inflammatory. This case is distinguishable from those cited by the majority in which the courts have condemned a prosecutor’s attempt to shift the burden of proof on identification to the defendant by intimating that an acquittal could only be based upon a finding that the complainant had lied (see, People v Williams, 112 AD2d 177; People v Ball, 77 AD2d 625; People v Webb, 68 AD2d 331). Unlike the cases cited by the majority, at bar the prosecutrix did not suggest that the defendant had any burden to prove a motive for the complainant to lie. The comments on the complainant’s truthfulness were proper and justified in the context of a hotly disputed credibility question upon which the case esséntially turned. Such comments in no way exaggerated or distorted the issue.

While I agree with the majority that it was improper for the prosecutrix to vouch for the credibility of her witnesses (see, e.g., People v La Rosa, 112 AD2d 954; People v Arcarola, 96 AD2d 1081), these comments were made without objection and, thus, the error of law was not preserved for review (see, CPL 470.05 [2]). I can see no reason whatever for reaching the error in the interest of justice because in the context of the entire summation such isolated comments did not prejudice the defendant or impair the jury’s ability to fairly evaluate the evidence.

Since I also deem the remainder of the defendant’s contentions to be without merit, I conclude that the judgment under review should be affirmed.