Ever wonder what it takes to get a conviction reversed because of prosecutorial misconduct? How about for unobjected to prosecutorial misconduct> The Appellate Division, Fourth Department, provided an answer in People v Morrice (2009 NY Slip Op 03282 4th Dept 4/24/09).
In Morrice the Court reversed a conviction for burglary and grand larceny because the District Attorney committed the following eight acts of misconduct, only some of which were objected to by trial counsel:
1. When in response to the prosecutor's question, the main prosecution witness falsely testified that she had received no benefit for he testimony, the prosecutor did not correct this "misstatement" as required (see People v Novoa, 70 NY2d 490, 496-498; People v Hendricks, 2 AD3d 1450, 1451, lv denied 2 NY3d 762; People v Potter, 254 AD2d 831, 832).
2. The prosecutor then "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.'"
3. The prosecutor twice elicited police testimony with respect to defendant's invocation of the right to counsel.
4. The prosecutor commented on defendant's invocation of the right to counsel during summation
5. The prosecutor questioned defendant on cross-examination concerning his discussion of the case with his attorney during a recess.
6. The prosecutor twice improperly asked a defense witness on cross-examination whether she had ever been arrested for a crime.
7. The prosecutor questioned a defense witness as to whether her boyfriend was currently incarcerated,
8. In summation the prosecutor characterized defendant as a liar and told the jury that defendant "just concocted a story now to try to deceive you."
Critically, the Court explained that in measuring whether misconduct has caused the defendant substantial prejudice "'one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached' (People v Mott, 94 AD2d 415, 419)."
Congratulations to Gary Muldoon for winning this reversal. Jeffrey Taylor was the Assistant District Attorney who prosecuted the case.