by
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Wednesday, December 7, 2011
by
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Janet C. Somes
Assistant Monroe County Public Defender
Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue
Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.
Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).
This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).
Friday, December 2, 2011
by
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
by
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
James Eckert
Assistant Monroe County Public Defemder
I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20.
There is a broader prohibition in the case of misdemeanors, however. Penal Law 70.25(3) provides that where "consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section [the rules mentioned above] and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate terms of such sentences should not exceed one year."
"In any event, even assuming that consecutive definite sentences were authorized, such sentences could not total more than one year under Penal Law § 70.25(3). That statute provides that the aggregate of the terms of such sentences shall not exceed one year if the crimes were committed as parts of a “single incident or transaction”. The Legislature's use of that language, as well as the structure of the statute itself, makes it clear that “incident or transaction” is a broader concept than “act or omission” (see, Penal Law § 70.25[2], [3]; People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; cf., CPL 40.10[2] ). Regardless of whether defendant's crimes stem from distinct “acts”, they were not committed during separate “incidents or transactions” (compare, People v. Booth, 119 A.D.2d 758, 759, 501 N.Y.S.2d 166 with People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). There was only one foray onto the college campus, and only one encounter with the purveyor of stolen goods. Defendant's acquiescence in the court's erroneous assertion that there were “two crimes” or “events” does not waive the protection of Penal Law § 70.25(3) (People v. Lopez, supra; People v. Judkins, supra; People v. Pellegriti, supra ). Therefore, we modify the judgment by providing that the sentences run concurrently."
People v. Taylor, 197 A.D.2d 858, 859 (1993).
Even where there is an agreed-upon sentence which violates this subdivision, the illegal sentence is not enforceable:
"Defendant was convicted, upon a plea of guilty, of criminal trespass, second degree (Penal Law, § 140.15) and resisting arrest (Penal Law, § 205.30). He was sentenced to a one year term on each charge, to be served consecutively. The People claim that the sentence was a result of a plea bargain and that defendant waived his rights under the Penal Law (§ 70.25, subd. 3). While the offenses were not committed through a single act or omission and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd. 2), they did arise from a single incident. Therefore, imposition of consecutive definite sentences aggregating more than one year was improper (Penal Law, § 70.25, subd. 3; People v. Silvagnio, 79 A.D.2d 1112, 435 N.Y.S.2d 866; People v. Salter, 39 A.D.2d 593, 331 N.Y.S.2d 739). The waiver argument is without merit because the court does not have authority to enlarge its statutory sentencing power (People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; People v. Lopez, 28 N.Y.2d 148, 320 N.Y.S.2d 235, 269 N.E.2d 28).
Accordingly we modify the sentence for resisting *951 arrest by directing that it run concurrently with the sentence for criminal trespass, second degree. Judgment unanimously modified on the law and as modified affirmed."
Sunday, November 20, 2011
In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that
the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).
In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant's risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that
the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711).
Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.
Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.
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