People v. Smith , 16 N.Y.3d 786 ( 2011 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of two counts of assault in the first degree, and one count each of attempted coercion in the first degree and criminal possession of a weapon in the second degree, in the shooting of a friend during a dispute.

On appeal, defendant challenges, under both state and federal law, the preclusion of an argument she wished to make at summation—namely that it was the victim of the shooting who first produced the gun that resulted in her being shot.^* Defendant’s challenges fail because to allow the requested summation argument would be to permit defense counsel to call upon the jury to reach conclusions that are “not fairly inferrable from the evidence” (People v Ashwal, 39 NY2d 105, 110 [1976]). The privilege of counsel to comment in summation on any matters of fact pertinent to questions that the jury must decide is not absolute. The privilege “can never operate as a license to state to a jury facts not in evidence” (Williams v Brooklyn El. R.R. Co., 126 NY 96, 103 [1891]), or to argue theories for which there is absolutely no evidentiary support.

Here, regardless of whether there was evidentiary support for the argument that the victim was shot during a struggle over the gun, the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim. In particular, the testimony of a police officer, that the victim told him that the gun with which she was shot was “heavier” than a gun he showed her for the purpose of comparison, is irrelevant to the issue whether the defendant or the victim first produced the gun. Moreover, the officer himself clarified the term, saying “[h]eavier, meaning larger,” and a victim’s recollection of the size of a gun in no way supports the theory that she first displayed the gun.

Defendant also challenges that part of the jury charge instructing the jury that if it found that the victim was “truthful and accurate in her testimony to you, [then] her testimony without any other eye witness to what happened inside the car, under the law satisfies the proof beyond a reasonable doubt.” Where, as here, a single sentence in a jury charge is challenged by the defendant, we “do not consider the challenged sentence alone and in a vacuum but instead must read the instruction as a whole to determine if it was likely to confuse the jury” (People v Fields, 87 NY2d 821, 823 [1995]). Here, although the challenged sentence itself does not accurately convey the principle that a single victim’s testimony can on its own prove guilt beyond a reasonable doubt, Supreme Court immediately went on to state that principle correctly. The court charged the jury that if the victim’s testimony “after your careful scrutiny does satisfy you beyond a reasonable doubt then her testimony alone can be sufficient to convict without other eye witness testimony” (emphasis added). Moreover, Supreme Court emphasized, in parts of the jury charge immediately before and after the challenged sentence, that the central duty of the jury was to decide whether the charged crimes had been proved beyond a reasonable doubt. In light of the charge as a whole, no reasonable juror would have concluded that if he or she found the victim’s testimony credible, then he or she had to find defendant guilty— without assessing whether all of the evidence was sufficient to show beyond a reasonable doubt that defendant was guilty.

* Defendant also claims that it was reversible error to preclude defense counsel from arguing at summation that the victim struggled with defendant over the gun. We do not address whether that ruling was error because the ruling was harmless. Defense counsel was permitted to argue that the gun went off accidentally, during a struggle over a handbag, and that defendant did not intend to cause serious physical injury.