Opinion
March 15, 1993
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered. The facts have been considered and are determined to have been established.
Viewing the evidence adduced at the trial in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The case was compromised by significant trial errors, the majority of which have not been preserved for appellate review. However, we feel compelled, under the circumstances of this case, to address these errors in the exercise of our interest of justice jurisdiction (see, People v Ortiz, 125 A.D.2d 502; People v. Hamilton, 121 A.D.2d 176). We reverse and order a new trial.
Beginning with the opening statement, the prosecutor engaged in a series of improper remarks and tactics that continued through the trial and summation. A number of the court's efforts at curative or limiting instructions were either inadequate or were overridden by the prosecutor's continued comments and persistence.
The court acted properly in admitting evidence concerning the defendant's prior physical abuse of the complainant as relevant on the issue of the defendant's intent with respect to the crimes charged (see, People v. Carver, 183 A.D.2d 907; People v. Wright, 167 A.D.2d 959; People v. Willsey, 148 A.D.2d 764; People v. Castrechino, 134 A.D.2d 877), especially in view of the defendant's position at the trial that he had struck the complainant by accident (see, People v. Allweiss, 48 N.Y.2d 40, 47; People v. DeLeon, 135 A.D.2d 555). However, the trial court's failure to deliver any limiting instructions with regard to this evidence indicates that the jury may have considered it as proof of the defendant's general criminal disposition to violence (see, People v. Guzman, 146 A.D.2d 799; People v. Bolling, 120 A.D.2d 601). The failure was compounded by the prosecutor's summation argument that the main probative value of the evidence in question was that it constituted proof of the defendant's general violent disposition.
While questioning the arresting officer, the prosecutor deliberately elicited testimony concerning the defendant's postarrest silence, and despite the court's ruling, made a point of stressing this testimony in summation. The tactic was clearly improper. We note that the defendant's postarrest silence had been the subject of a curative instruction in response to the prosecutor's comments during his opening statement (see, People v. Conyers, 49 N.Y.2d 174, 177; People v. Von Werne, 41 N.Y.2d 584, 587-588; People v. De George, 73 N.Y.2d 614). Under the facts of this case, it cannot be deemed harmless (see, People v Crimmins, 36 N.Y.2d 230, 237).
In answer to the prosecutor's question, the People's medical expert was permitted to testify that in her opinion, the injury to the complainant's eye could not possibly have resulted from, in the prosecutor's words, "an accidental poke in the eye". This characterization, however, distorted the issue. The defendant did not claim that he merely poked the complainant by accident. He stated that he struck her "pretty hard," although unintentionally. Since the degree of injury inflicted by the defendant's action had no relation to the motive behind it, the question, as posed, was improper (see, People v. Robinson, 174 A.D.2d 998). Whether the defendant intended or did not intend to strike a concededly forceful blow to the complainant was an ultimate issue of fact which did not involve professional knowledge outside the range of ordinary training or intelligence (see, Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101-102; see also, People v. Cronin, 60 N.Y.2d 430; Kulak v. Nationwide Mut. Ins. Co., 40 N.Y.2d 140, 147-148). On the contrary, there is no doubt that in this case the jury was fully capable of comprehending the issues and evaluating the evidence as it related to the defendant's intent (see, People v. Rowe, 172 A.D.2d 701; People v. Kincey, 168 A.D.2d 231). The prejudicial effect of this testimony was compounded by the prosecutor in his closing argument when he again mischaracterized the issue.
Besides those remarks already noted, additional improper and prejudicial remarks by the prosecutor, especially in closing argument, contributed to the unfairness of the defendant's trial. Among these remarks were references to the defense counsel's closing statement as a "con job", warnings that the defendant would attempt to "dupe" the jury, repeated vouching for the complainant's truthfulness, and derisive comments concerning the defendant's right to remain silent and the presumption of innocence.
We note that the trial court did not err in refusing to permit juror note-taking during its charge to the jury (see, People v Stewart, 179 A.D.2d 731).
In view of the foregoing, we need not reach the defendant's remaining contentions. Bracken, J.P., Rosenblatt, O'Brien and Copertino, JJ., concur.