Rare Reversal for Prosecutorial Misconduct

On April 24, 2009, the Fourth Department took the rare step of reversing a conviction on the grounds of partially unpreserved instances of prosecutorial misconduct. In People v. Kevin R. Morrice, "the prosecutor asked the witness if she was 'getting anything in return for [her] cooperation of telling the truth,' and she responded '[n]ot at all.' In fact, that witness was an accomplice and had received transactional immunity in exchange for her testimony before the grand jury (see CPL 50.10 [1]; 190.40 [2]). The prosecutor had an obligation to correct the misstatement of that witness but failed to do so." Then, "he compounded his misconduct in failing to correct the misstatement by telling the jury during summation that the witness was 'getting nothing out of having testified in this case'."

Later, "[t]he prosecutor also engaged in misconduct when he [twice] questioned a police detective on direct examination with respect to defendant's invocation of the right to counsel."

To make matters worse, "[t]he prosecutor further engaged in misconduct when he asked a defense witness on cross-examination whether she had ever been arrested for a crime", and then scolded the witness for only answering regarding whether she had ever been convicted of a crime.

As if this was not enough, "[t]he prosecutor also engaged in misconduct when he questioned that witness concerning whether her boyfriend was currently incarcerated, and he exceeded the bounds of legitimate advocacy during summation by characterizing defendant as a liar (see People v Fiori, 262 AD2d 1081; People v Bonilla, 170 AD2d 945, lv denied 77 NY2d 904)."

The court noted that although reversal is not the desired remedy for prosecutorial misconduct, "it is nevertheless mandated when the conduct of the prosecutor has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law".

More posts to come over the next two days.