182 A.D.2d 1114 | N.Y. App. Div. | 1992
Judgment unanimously reversed on the law and new trial granted. Memorandum: This case involves prosecutorial misconduct that seriously prejudiced defendant’s right to a fair trial. The prosecutor’s conduct was programmed and deliberate, and in flagrant disobedience of the trial court’s prior ruling. Despite the strong proof of defendant’s guilt, we reverse (see, People v Alicea, 37 NY2d 601; People v Mott, 94 AD2d 415).
The prosecutor had been directed by the trial court not to impeach his witness, Vernessa Maddox, by referring to her pretrial sworn statements, which included an admission by the defendant to her that he had been involved in the attempted robbery and double murder at Rico’s Bar. Notwithstanding the court’s direction, after Maddox testified that defendant had come to her house with a sawed-off shotgun following the shooting, the prosecutor asked if defendant had said anything about the shooting. When she answered "No”, the prosecutor asked, "[d]id the defendant say I had to pop the bastard, he wouldn’t let Mike go”. After defense counsel’s objection was sustained and a motion for a mistrial denied, the prosecutor, nevertheless, persisted by asking "[d]id the defendant say that to you at that time?” The trial court was obliged to remind the prosecutor that it had sustained the objection and had denied the motion for a mistrial.
The prohibition imposed upon the prosecutor by the trial court pursuant to CPL 60.35 was correct (see, People v Knatz, 76 AD2d 889; People v Kitchen, 55 AD2d 575). Maddox’s unwillingness to testify to something she had previously disclosed to the police did not "tend to disprove the position” of the People and, accordingly, could not be used "for the purpose of refreshing the recollection of [Maddox] in a manner
Additionally, defendant’s parole officer, brought in by the People as a witness for the ostensible purpose of identifying a photograph depicting defendant’s home, exposed to the jury that defendant was on parole. Although it gave a minimal curative instruction, the court erred in permitting, over objection, the parole officer to testify that he had seen defendant 15 times in a 14-month period, thereby impressing on the jury the fact that defendant was on parole.
We also note that, in spite of the gag rule imposed by the trial court, and while the court was still considering defendant’s motion for a mistrial brought on by the parole officer’s disclosure, the prosecutor allowed himself to be interviewed by a local newspaper and discussed the effect a mistrial would have upon this well-publicized double murder case.
The hearing court correctly determined that no hearing was required regarding the alteration of the address in the search warrant (see, People v Rainey, 14 NY2d 35; People v Ramirez, 168 AD2d 908, lv denied 77 NY2d 965) and that the warrant was intended to encompass the entire premises (see, People v Dunn, 155 AD2d 75, affd 77 NY2d 19, cert denied — US —, 111 S Ct 2830). (Appeal from Judgment of Supreme Court, Monroe County, Cornelius, J. — Murder, 2nd Degree.) Present —Denman, P. J., Green, Balio, Boehm and Fallon, JJ.