OPINION OF THE COURT
The deliberate and pervasive pattern of prosecutorial misconduct at defendant’s trial for conspiracy in the first degree deprived defendant of a fair trial and compels reversal and a new trial.
Defendant Leonard Mott and Angelo Nuccie were indicted for conspiring to murder Robert Phillips, who was scheduled to be a witness in the Federal trial of Herman Peterson on charges of drug trafficking. An unindicted coconspirator, Bernard Siplin, informed police of the plot and was furnished with an electronic listening device for the purpose of recording conversations relating to the conspiracy. The police placed Siplin under surveillance and, after he had recorded relevant conversations, apprehended the three coconspirators. Nuccie was tried sepa
The proof against defendant consisted mainly of the testimony of Siplin and the taped conversation which was played for the jury. Inasmuch as Siplin himself had been engaged in the alleged conspiracy and admitted to supporting his drug addiction by stealing, his motive for testifying against defendant and the validity of his testimony were open to question. Additionally, portions of the taped conversation were inaudible, the speakers nonidentifiable and the court ruled that a transcript of the conversation in the hánds of the District Attorney was inadmissible. Viewed in the context of this rather tenuous proof, the conduct of the District Attorney must be examined with precision to discern whether his trial tactics diverted the attention of the jury from the issues and tended to distort the facts and prejudice the minds of the jurors. We find that the improper and unprofessional conduct of the Assistant District Attorney was so egregious that we cannot say that the jury reached a verdict on the basis of the evidence rather than on extraneous ideas implanted by the prosecutor.
We recite only a few examples illustrative of the manner in which the trial was conducted. From his opening statement through his summation, the prosecutor attempted to establish that the motive for the plot to kill Phillips was that Herman Peterson was Mott’s drug supplier and his superior in a drug operation, and that Mott was seeking to protect him. Yet the record reveals not one shred of evidence to support that theory. Repeated statements by the prosecutor tending to connect Mott with Peterson in a drug operation were objected to by defense counsel. Despite the fact that the court sustained the objections, the prosecutor persisted. During summation the prosecutor relentlessly pursued that theme, attempting to show that Peterson had orchestrated the entire scenario, yet defendant’s motions for a mistrial were denied. Such conduct is not only improper and highly prejudicial, it borders on the contemptuous and merits strong disciplinary action (see People v Alicea, 37 NY2d 601, 604; People v Stewart, 92 AD2d 226, 228).
One of the most serious transgressions occurred in relation to the transcript of the taped conversation. The transcript had been prepared solely to apprise defense counsel of the statements which would unfold on the tape. The court ruled that it was inadmissible and instructed the court reporter to record only what she was able to hear from the tape which, incidentally, was nothing. On the day after the tape was played for the jury, an article appeared in the local newspaper quoting at length from the transcript and identifying statements as those of defendant and the other conspirators. Defense counsel moved for a mistrial on the ground that publication of the transcript created the potential for defendant’s guilt to be determined on matter extraneous to the proof. The prosecutor admitted that he had given the transcript to a newspaper reporter and also to the court reporter to be included in the record despite the court’s ruling that it was to be given only to defense counsel. When defendant’s motion for a mistrial was denied, defense counsel moved to have the jury polled to determine if anyone had read the offending article. The court refused. Compounding his transgression, the prosecutor used the transcript during his cross-examination of the defendant referring to it continually in phrasing his questions so that the jury heard essentially all of the statements in. the transcript. Finally, the prosecutor used the transcript during summation, waving it in front of the
The attitude and tactics of the prosecutor were unseemly and unprofessional in the extreme and violated the defendant’s right to be tried in a fair and impartial manner consistent with the ends of justice. Both Federal and State courts have only too frequently had occasion to remind prosecutors that their function goes beyond that of a mere advocate and that they are charged with the responsibility of presenting competent evidence fairly and temperately, not to get a conviction at all costs (see, e.g., People v Bailey, 58 NY2d 272; People v Zimmer, 51 NY2d 390; United States v Modica, 663 F2d 1173). Because a prosecutor represents the State, his words and actions carry greater force and hold greater sway with a jury than those of a private attorney. “He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one” (Berger v United States, 295 US 78, 88).
The prosecutor here fell far short of that standard. His persistent inflammatory remarks, his insulting and browbeating manner with defense witnesses, his accusations against defense counsel, his repeated efforts to put matter not in evidence before the jury, his use of a transcript which had been ruled inadmissible, his improper use throughout the trial of the theme that defendant was involved in a drug operation, were the antithesis of those qualities which are contemplated in our jurisprudence when we speak of a defendant having a right to a fair trial.
The task facing an appellate court when reviewing instances of impropriety at trial is to determine whether the misconduct is so egregious that reversal of a conviction is required. Courts and commentators have wrestled with the problem of whether the remedy for a prosecutor’s miscon
Regrettably, the trial court was also woefully remiss in dealing with the District Attorney. The Judge completely abdicated his responsibility by failing to admonish the prosecutor and failing to make prompt curative instructions to the jury indicating the impropriety of the prosecutor’s remarks and that the jury should ignore them. In People v Galloway (54 NY2d 396), the trial court’s handling of similar incidents resulted in affirmance and gave rise to the court’s comments that “the Trial Judge was a saving grace. Not chary about raising his own restraining hand, he handled most of the episodes promptly and forcefully, aborting prejudice by cutting short the arguments, or, in instances where he thought it appropriate, confining it to chambers” (People v Galloway, supra, p 399). In contrast, the Trial Judge here, by failing to curb the prosecutor’s improper remarks, seemingly put the court’s imprimatur on them in the eyes of the jury (see People v Steinhardt, 9 NY2d 267, 271). Instead of unequivocally directing the prosecutor to refrain from inflammatory remarks and other improper conduct, he merely told him that he was running a risk of reversal but that he would leave the matter for appellate review. Thus, like the situation in
We recite merely a few instances in which the court could have redeemed the situation. When the District Attorney improperly gave the transcript of the taped conversations to the press, the court should have conducted an inquiry of the jury to determine whether any members had read the article. As we have had occasion to note in a similar context, “publicity * * * does not inevitably necessitate declaration of a mistrial. Such a result is warranted only in those instances where, after an exhaustive and probing inquiry of each affected juror, the court is of the belief that a fair and impartial determination cannot be reached. It was in the denial of the mistrial without conducting such inquiry that the trial court erred” (People v Mordino, 58 AD2d 197, 205). Here the court refused to conduct such inquiry, commenting that he would declare a mistrial if he believed that any of the jurors had read the offending article but requiring that defense counsel show some evidence that the jury had done so. How was this to have been accomplished without defense counsel asking the jury?
When, in defiance of the court’s rulings, the prosecutor persisted in his attempts to introduce evidence of defendant’s alleged connection with a drug operation, the court should have admonished him. Indeed, a sharp rebuke in front of the jury would have served a twofold purpose: It might have deterred the prosecutor from further comment on this subject and would have alerted the jury to the impropriety. Instead, the failure of the court to reprimand the prosecutor very likely served to indicate to the jury that his behavior and comments were entirely proper (see People v Steinhardt, supra, p 271).
With respect to the trial court, we note that its penchant for talking with jurors in camera without the presence of counsel would alone be grounds for reversal if it had been raised. During the course of the trial, some of the jurors
In sum, the record makes abundantly clear that defendant’s fundamental right to a fair trial was denied and his conviction must be reversed and a new trial granted. As the Court of Appeals stated in People v Alicea (37 NY2d 601, 605, supra), “Criminal 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
Dillon, P. J., Doerr, Green and Moule, JJ., concur. Judgment unanimously reversed, on the law, and a new trial granted.