People v. Roopchand , 485 N.Y.S.2d 332 ( 1985 )

OPINION OF THE COURT

Per Curiam.

The core question dividing us is whether the trial prosecutor’s remarks in summation, which were patently improper and which we unequivocally condemn, entitle the defendant to a new trial. A review of the record convinces the majority of us that reversal is not warranted.

Reversal for prosecutorial misconduct “ ‘is properly shunned when the misconduct has not substantially prejudiced a defendant’s trial. Reversal is an ill-suited remedy for prosecutorial misconduct; it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted’ ” (People v Galloway, 54 NY2d 396, 401, quoting United States v Modica, 663 F2d 1173, 1184, cert denied 456 US 989; see also, People v Keppler, 92 AD2d 1032). Thus, the appropriate question is whether the misconduct deprived the defendant of a fair trial (see, e.g., People v Hopkins, 58 NY2d 1079, 1083; People v Lowen, 100 AD2d 518, 520; People v Tayeh, 96 AD2d 1045, 1047; cf. People v Cruz, 98 AD2d 726; People v Stewart, 92 AD2d 226). “The rule is that an improper summation, at least when the objectionable parts consist largely of abusive and intemperate language as here, should be assessed for its prejudicial effect, and it requires greater impropriety to produce that effect in a stronger case” (People v Brosnan, 32 NY2d 254, 262; see also, United States v Johns, 734 F2d 657, 661-662; United States v Weatherless, 734 F2d 179, 181-182, cert denied _ US _, 105 S Ct 595).

As in Brosnan, “[i]n this case, it is at most only arguable that the prosecutor’s misconduct could have produced a greater adverse effect on the jury than did the bizarre facts of the crime, and the overwhelming evidence of culpability” (People v Brosnan, supra, p 262). The victim positively identified the defendant as her assailant at the time of his arrest, some 25 to 30 minutes subsequent to the crime. At that time, defendant’s pants were ripped and his legs were bleeding, a condition consistent with having been dragged in circles by a car, as the victim testified had occurred. He almost perfectly matched the description given to the police moments after the incident. The alibi testimony was totally unpersuasive and, indeed, based upon the alibi witness’ time approximation it appears that he saw the defendant after the crime had been committed. Hence, the prosecutor’s unwarranted comments do not taint the conviction (People v Galloway, 54 NY2d 396, 401, supra; People v Harris, 107 AD2d 761; accord, United States v Johns, supra; United States v Weatherless, supra; United States v Bosby, 675 F2d 1174, 1185; United States v Karas, 624 F2d 500, 506, cert denied 449 US 1078).

When prosecutorial misconduct has occurred, we may employ sanctions other than reversal to insure nonrepetition. We can, for example, condemn the prosecutor publicly, direct the commencement of disciplinary proceedings and preclude the prosecutor from making court appearances for a specified period of time (cf. United States v Modica, 663 F2d 1173, supra). Such an approach is far more appropriate when a defendant has been fairly convicted, as the direction for a new trial operates to punish the victim and the witnesses through additional inconvenience and expense (cf. United States v Hasting, 461 US 499, 506-507; Morris v Slappy, 461 US 1, 14-15).

At this juncture, we are not inclined to impose any direct sanction against the offending prosecutor other than to warn him that any future infractions may lead to disciplinary action and that we expect the District Attorney of Queens County to issue an appropriate internal admonition. We remind District Attorneys that they have a continuing obligation to clearly and firmly instruct their trial assistants to refrain from using improper tactics and, through periodic observation, to assure that these instructions are adhered to. Trial judges who experience difficulties with assistants appearing before them should have no hesitancy in bringing the matter to the attention of the District Attorney.

Defendant’s complaint that the People introduced into evidence a statement he made without giving the notice specified by CPL 710.30 also does not constitute reversible error. First, it is not at all clear that such notice was required. It appears that the People did not intend to elicit the statement and it was volunteered by the police officer (see, People v Webb, 97 AD2d 779). Moreover, the statement was made in a noncustodial, noncoerced environment and was plainly voluntary (People v Travison, 46 NY2d 758, affg 59 AD2d 404, 407, cert denied 441 US 949; People v Pray, 99 AD2d 915, 916; People v Balschweit, 91 AD2d 1127; cf. People v Burnett, 99 AD2d 786). In any event, the statement added little to the People’s case and its admission, if error, was harmless (People v Johnson, 54 AD2d 586; People v Edwards, 51 AD2d 807).

Nor did the court marshal the evidence unfairly (see, People v Culhane, 45 NY2d 757, cert denied 439 US 1047; People v Little, 98 AD2d 752, affd 62 NY2d 1020; People v Harris, 69 AD2d 843). The court gave appropriate instructions and accurately summarized the testimony of all three witnesses.

Finally, we would, note that even if there were merit in defendant’s arguments, we would not dismiss the indictment even though we are told that he has served his sentence. Defendant’s claims all relate to asserted trial errors and in such circumstances the Criminal Procedure Law specifies that the appropriate corrective action is the direction for a new trial (CPL 470.20 [1]; People v Allen, 39 NY2d 916; but cf. People v Sutton, 98 AD2d 785; People v Fondal, 64 AD2d 638).

While dismissal may be warranted where the charges “involved relatively minor crimes” (People v Burwell, 53 NY2d 849, 851; cf. Matter of Ernesto M., 65 AD2d 800), in this case the conviction is for a felony “and for penological purposes it is relevant whether defendant committed the crime” (People v Allen, supra, p 918). Should defendant ever commit another felony, it is important that the court be able to impose an enhanced sentence.

Accordingly, the judgment should be affirmed.