Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO status.

Reversal Due to Unpreserved Prosecutorial Misconduct

In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote

as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People's witnesses during both his opening and closing statements (see People v LaDolce, 196 AD2d 49, 57; see generally People v Bailey, 58 NY2d 272, 277-278). He also improperly elicited testimony from a police officer who vouched for the credibility of the confidential informant by testifying that the confidential informant had provided reliable information to the police in the past (see People v Slaughter, 189 AD2d 157, 160, lv denied 81 NY2d 1080). In addition, the prosecutor repeatedly elicited irrelevant and highly prejudicial testimony from several police officers concerning the percentages of convictions obtained by those officers in prior unrelated cases, referred to by the prosecutor as their "batting average[s]." That misconduct was compounded during summation when the prosecutor highlighted the "exemplary record" of the police officers and the confidential informant who testified for the prosecution by stating that they were "batting 100 percent[,] 85 percent, 90 percent" (see generally People v Ashwal, 39 NY2d 105, 109-110). Further, the prosecutor improperly elicited testimony establishing that defendant had been incarcerated since his arrest (see People v Paul, 229 AD2d 932, 933), as well as testimony on direct examination of the confidential informant that defendant had not made certain exculpatory statements to him while they were in jail following defendant's arrest (see generally People v Collins, 12 AD3d 33, 38-39).

It cannot be said that County Court "took appropriate action to dilute the effect of [the prosecutorial misconduct]" (People v Mott, 94 AD2d 415, 419), and we conclude that the misconduct "operated to deny . . . defendant his fundamental right to a fair trial" (People v Crimmins, 36 NY2d 230, 238). We therefore "must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" (id.).

Horseshoes, Hand Grenades, and Predicate Sentencing:

Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited.

In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a
second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that

[t]he People filed a second felony offender statement at the first trial and defendant admitted his status as a second felony offender at that time and at sentencing following the retrial. We thus conclude that there was substantial compliance with the statute.

Thus, the People are required to have only substantial compliance with CPL 400.21 (2).