The People, Respondent,v.Kenneth Padilla, Appellant.BriefN.Y.May 2, 2013New York County Clerk’s Indictment No. 752/09 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against KENNETH PADILLA, Defendant-Appellant. To Be Argued By: Randall D. Unger Time Requested: 15 Minutes BRIEF FOR DEFENDANT-APPELLANT KENNETH PADILLA RANDALL D. UNGER Attorney for Defendant-Appellant Kenneth Padilla 42-40 Bell Boulevard, Suite 302 Bayside, New York 11361 718-279-4500 Date Completed: August 17, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...................................................................... iii PRELIMINARY STATEMENT................................................................ 1 QUESTIONS PRESENTED...................................................................... 2 SUMMARY OF THE ARGUMENT......................................................... 3 STATEMENT OF FACTS......................................................................... 5 The Suppression Hearing................................................................. 5 The People’s Case............................................................................ 5 The Defense Case............................................................................. 8 The Hearing Court Decision............................................................ 10 The Trial........................................................................................... 10 The People’s Case............................................................................ 10 The Defense Case............................................................................. 18 The People’s Rebuttal Case.............................................................. 22 The Prosecutor’s Summation............................................................ 22 The Deliberations, Verdict & Sentence............................................ 23 ARGUMENT: POINT I THE PEOPLE FAILED TO ESTABLISH THAT THE POLICE CONDUCTED A VALID INVENTORY SEARCH OF THE APPELLANT’S VEHICLE. THE FIREARM SEIZED DURING THAT SEARCH SHOULD THEREFORE HAVE BEEN SUPPRESSED..................................................... 24 POINT II THE PEOPLE FAILED TO PROVE THE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT................................................ 33 POINT III THE APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY THE NUMEROUS, EGREGIOUS IMPROPRIETIES COMMITTED BY THE TRIAL PROSECUTOR............................................................... 38 CONCLUSION.......................................................................................... 44 ii TABLE OF AUTHORITIES Page Cases Berger v. United States, 295 U.S. 78 (1934).............................................. 39 Colorado v. Bertine, 479 U.S. 367 (1987).................................................. 25 Florida v. Wells, 495 U.S. 1 (1990)............................................................ 25-26 Jackson v. Virginia, 443 U.S. 307 (1979)................................................... 33 Katz v. United States, 389 U.S. 347 (1967)................................................ 25 People v. Alexander, 94 N.Y.2d 382 (1999)............................................... 43 People v. Bailey, 58 N.Y.2d 272 (1983)..................................................... 39 People v. Ballard, 133 Misc.2d 584 (Sup. Ct. New York County 1986)... 34 People v. Brown, 181 A.D.2d 1041 (4th Dept. 1992)................................. 36 People v. Butler, 185 A.D.2d 141 (1st Dept. 1992).................................... 40, 43 People v. Collins, 12 A.D.3d 33 (1st Dept. 2004)....................................... 42 People v. Contes, 60 N.Y.2d 600 (1983).................................................... 33 People v. DeJesus, 137 A.D.2d 761 (2nd Dept. 1988)................................. 42 People v. Diaz, 170 A.D.2d 202 (1st Dept. 1991)....................................... 39, 42 People v. Galak, 80 N.Y.2d 715 (1993)...................................................... 26, 30, 32 iii People v. Galloway, 54 N.Y.2d 396 (1981)................................................ 42 People v. Gomez, 13 N.Y.3d 6 (2009)........................................................ 30 People v. Griffin, 116 Misc.2d 751 (Sup. Ct., New York County 1982)... 27 People v. Hicks, 138 A.D.2d 519 (2nd Dept.), lv. denied, 71 N.Y.2d 969 (1988)..................................................... 34 People v. Johnson, 1 N.Y.3d 252 (2003).................................................... 30 People v. Johnson, 254 A.D.2d 500 (2nd Dept. 1998)................................. 25 People v. Lemmons, 40 N.Y.2d 505 (1976)............................................... 34 People v. Lombardi, 20 N.Y.2d 266 (1967)................................................ 42 People v. Lovello, 1 N.Y.2d 436 (1956)..................................................... 39 People v. McCutcheon, 76 A.D.2d 934 (2nd Dept. 1980)........................... 42 People v. Miles, 3 Misc.3d 566 (City Ct., City of Rochester 2003)........... 26 People v. Moye, 12 N.Y.3d 743 (2009)....................................................... 39-40 People v. Olivo, 120 A.D.2d 466 (1st Dept. 1986)...................................... 36 People v. Padilla, 89 A.D.3d 505 (1st Dept. 2011)...................................... 1 People v. Pagan, 2 A.D.3d 879 (2nd Dept. 2003)......................................... 42 People v. Paperno, 54 N.Y.2d 294 (1981)................................................... 40 People v. Pauli, 130 A.D.2d 389 (1st Dept. 1987)....................................... 42 People v. Posner, 273 N.Y. 184 (1937)....................................................... 41 iv People v. Rivera, 77 A.D.2d 538 (1st Dept. 1980)....................................... 34 People v. Roman, 150 A.D.2d 252 (1st Dept. 1989).................................... 42 People v. Rutledge, 179 A.D.2d 404 (1st Dept. 1992)................................. 43 People v. Schwing, 13 A.D.3d 725 (3rd Dept. 2004)................................... 26 People v. Steinhardt, 9 N.Y.2d 267 (1961)................................................. 39 People v. Sullivan, 29 N.Y.2d 69 (1971).................................................... 25 People v. Tolbert, 198 A.D.2d 132 (1st Dept. 1993)................................... 43 People v. Webb, 68 A.D.2d 331 (2nd Dept. 1979)....................................... 41 People v. Williams, 146 A.D.2d 659 (2nd Dept. 1989)................................ 37 People v. Wilt, 105 A.D.2d 1089 (4th Dept. 1984)...................................... 34 People v. Wright, 285 A.D.2d 984, 985 (4th Dept. 2001)............................ 29 Ulster County Ct. v. Allen, 442 U.S. 140 (1979)........................................ 34-35 United States v. Duguay, 93 F.3d 346 (7th Cir. 1996)................................. 26-27 United States v. Jeffers, 342 U.S. 48 (1951)............................................... 25 Statutes & Other Authorities U.S. Const., Amend. IV............................................................................... 25 C.P.L. § 470.05 (2)...................................................................................... 2 Penal Law § 10.00 (8)................................................................................. 34 Penal Law §265.03...................................................................................... 1, 33 Penal Law §265.15(3).................................................................................. 4, 33 v 1Numbers in parentheses following the letter “A” refer to the pages in the Appendix submitted herewith. Those with no prefix are to the trial transcript. 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KENNETH PADILLA, Defendant-Appellant. ------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, Judge of the Court of Appeals, granted June 21, 2012 (A1),1 Kenneth Padilla (hereinafter “appellant”) appeals from an order of the Appellate Division, First Department, entered November 10, 2011, People v. Padilla, 89 A.D.3d 505 (1st Dept. 2011) (A2), that affirmed with a decision and order a judgment rendered September 8, 2010, by the Supreme Court, County of New York, convicting the appellant, after a jury trial, of criminal possession of a weapon in the second degree in violation of Penal Law §265.03, and sentencing him to a determinate term of imprisonment of seven years (Wayne M. 2 Ozzi, J., at trial and sentencing). No stay of execution was sought and the appellant is presently incarcerated pursuant to the judgment of conviction herein. On June 21, 2012, this Court granted the appellant leave to appeal. This Court has jurisdiction to entertain this appeal pursuant to Criminal Procedure Law § 450.90 (1), and the issues raised are fully preserved for this Court’s review under Criminal Procedure Law § 470.05 (2). The question of whether the search and seizure conducted by the police constituted a proper inventory search is fully preserved by trial counsel’s motion to suppress and his post-hearing arguments in support of that motion. The question of whether the evidence was legally insufficient to support the conviction is fully preserved by trial counsel’s motions to dismiss and closing arguments at trial. The question of whether the appellant was denied his right to a fair trial by the prosecutor’s improper questions and arguments is fully preserved by trial counsel’s objections at trial. QUESTIONS PRESENTED 1. Whether the seizure by the police of a firearm from the trunk compartment of a vehicle was conducted pursuant to a proper inventory search. 2. Whether the People presented sufficient evidence to establish beyond a reasonable doubt that the appellant committed the crime of criminal possession of 3 a weapon in the second degree. 3. Whether the appellant was denied his due process right to a fair trial by the misconduct committed by the trial prosecutor. SUMMARY OF THE ARGUMENT The charge for which the appellant was found guilty was based on a search of the trunk of his SUV by the police. That search, which followed his arrest for operating a motor vehicle under the influence of alcohol, a charge for which he was acquitted, revealed a loaded revolver inside a bag which was concealed in the spare tire compartment. At the suppression hearing, the officer who conducted the search admitted that he was searching the appellant’s vehicle for contraband. Indeed, photographs of the appellant’s vehicle taken after his arrest showed that the back seats had been torn open during the police search. In addition, prior to the discovery of the revolver, the searching officer exercised discretion by turning over numerous personal belongings from the vehicle to the appellant’s sister. The officer made no attempt to itemize the property he found in the vehicle and therefore failed to prepare a meaningful inventory of the vehicle’s contents. Under the circumstances, it cannot be concluded that the police conducted a proper inventory search of the appellant’s vehicle. 4 Furthermore, at trial, the People produced no concrete evidence to establish that the appellant knowingly possessed the revolver concealed in the trunk of his vehicle. In fact, the sole basis for the People’s contention that the appellant was guilty of criminal possession of a weapon in the second degree was their reliance on the presumption contained in Penal Law § 265.15 (3). But that presumption was convincingly rebutted by evidence that the area of the vehicle in which the revolver was found was inaccessible to the appellant; that other people had recently operated and occupied the vehicle, and that there was no physical or forensic evidence connecting the appellant to the revolver. In short, the evidence was legally insufficient to support the appellant’s conviction. Finally, the record discloses that the appellant’s due process right to a fair trial was abridged by misconduct committed by the prosecutor during his questioning of witnesses and his summation. Among other things, the prosecutor made himself an unsworn witness; he vouched for the truthfulness of his own witnesses; he interjected matters that were extraneous to the case against the appellant; he mischaracterized and denigrated the defense; he misstated the law, and he shifted the burden of proof. Given the weakness of the People’s case, it cannot be concluded that the prosecutor’s misconduct did not contribute to the verdict rendered against the appellant. 5 STATEMENT OF FACTS The Suppression Hearing The People’s Case P.O. Christopher White, assigned to the 7th Pct., was on patrol with his partner P.O. Cercel during the early morning hours of June 7, 2008. At about 2:15 a.m., he was driving eastbound on Henry Street, approaching Clinton Street, when he observed a Lexus SUV parked by a hydrant, with the rear of the vehicle obstructing traffic. As he neared the Lexus, he saw that the engine was running, the lights were on, the doors closed, and the driver’s seat occupied by the appellant. When White exited his car, the appellant exited the Lexus. White told the appellant to return to the Lexus but the appellant refused. As White got closer, he claimed that he observed that the appellant had bloodshot, watery eyes, slurred speech, was unsteady on his feet and was acting in a belligerent manner. However, White did not recall if the appellant was holding a soft drink at the time. Nor did he recall if any of the people who were at the scene yelled that the appellant hadn’t been driving (A10-A15, A25- A35). After the appellant was handcuffed, White removed his sneakers to see if he had any concealed contraband. He also offered him an intoxication field test. However, the appellant refused. White then turned the appellant over to P.O. 6 Lanzisero who took credit as the arresting officer. Though White had testified before the grand jury that his partner Cercel did not take the arrest because he had previously arrested the appellant for possession of a firearm, he claimed that Cercel only revealed his prior encounter with the appellant “at a later time”. And he insisted that Cercel never told him that he had previously issued numerous summonses to the appellant or that the appellant had filed civilian complaints against him (A15-A25, A28-A29, A38). P.O. William Lanzisero, assigned to the 7th Pct., responded to a “call for backup” at the time and place in question. When he arrived, he saw P.O. White and P.O Cercel attempting to handcuff the appellant who was agitated, smelled of alcohol and had bloodshot eyes. After he was assigned to arrest the appellant, he transported him to the precinct and vouchered his Lexus SUV for forfeiture (A39-A44). After the Lexus SUV was transported to the precinct, Lanzisero proceeded to conduct what he termed an inventory search “to make sure the vehicle [was] free and clear of anything before ... sending it to the pound”. As he was beginning that search, the appellant’s sister, who identified herself as a police officer, arrived at the precinct. Though the NYPD Patrol Guide did not provide any authority for giving an arrestee’s personal property to another person, Lanzisero gave the appellant’s sister all of the items of property that he removed from the front and rear 7 seats of the Lexus and had her sign his memo book acknowledging receipt. Moreover, even though the Patrol Guide directed that each item of property removed from a vehicle be specifically identified, Lanzisero failed to follow that directive. And though he asserted that it would be improper to rip apart portions of a vehicle being inventoried, he conceded, when shown photographs of the Lexus, that the back portions of the front seats of that vehicle had been ripped open, and that in the course of his search, he had purposely looked for narcotics in areas of the vehicle where he knew such items were commonly hidden (A43-A63, A69-A92). When Lanzisero opened the hatch at the rear of the Lexus, he observed that the trunk area contained audio speakers and an amplifier that “filled up the entire space”. Though he did not claim to possess any expertise with regard to the equipment typically contained in the Lexus model in question, he concluded that the speakers were not “factory speakers” and had to be inventoried. He then spent between 45 minutes and an hour disassembling and removing the speakers. By about 7:00 a.m., about five hours after the appellant’s arrest, Lanzisero was able to open the spare tire compartment that had been covered by the speakers. In that compartment, he discovered a black leather bag that contained a loaded silver .357 Magnum revolver. He then picked the appellant up at the Central Booking facility and rearrested him for possession of a firearm (A63-A67, A102-A104). 8 The Defense Case Luz Martinez was the appellant’s girlfriend and had known him for about twenty years. On the morning of June 7, 2008, the appellant drove his Lexus SUV to Martinez’ uncle’s home on 9th Street and Avenue D. When he met Martinez there, he asked her if she could drive because he was feeling tired. Martinez then drove the appellant to the South Street Seaport and spent some time with him there. She then drove the appellant to the corner of Clinton Street and Henry Street and parked there. She and the appellant then entered a grocery to purchase soft drinks. When the appellant exited the store, he began speaking with some friends who were in front of the store. At that time, Martinez asked the appellant to retrieve her cell phone which was in his SUV by the driver’s seat. As the appellant was reaching into his SUV to retrieve the cell phone, Martinez observed a police car pull up and heard officers harassing the appellant and asking him if he had been in the vehicle. She also heard people yelling at the officers, asking them why they were arresting the appellant (A116-A119, A123-A136). After the appellant was arrested, the officers had him take off his sneakers. When Martinez asked one of the officers what was happening, she was told to “shut the hell up” or she would be arrested too. Subsequently, a Chinese police officer drove Martinez in the appellant’s vehicle to the precinct where she was finally 9 given her cell phone. At one point, Martinez walked out of the station house and observed four or five officers searching the appellant’s vehicle with the use of flashlights. When the officers noticed Martinez, they stopped searching, closed the doors to the vehicle and entered the station house (A119-A122, A136-A138). Yvette Vasquez was the appellant’s sister and a police officer employed by the NYC MTA. On June 7, 2008, at about 4:00 a.m., she received a phone call from the appellant informing her that he’d been arrested and asking her to come to the 7th Pct. to pick up his belongings. When she arrived at the precinct, she showed her identification and was permitted to speak with the appellant. She then spoke with P.O. Lanzisero. During that conversation, they realized that they had graduated from the Police Academy at the same time. After Lanzisero gave her the appellant’s wallet without inspecting its contents, he accompanied Vasquez outside to the appellant’s SUV so that she could take her brother’s personal property from the vehicle. Lanzisero and Vasquez removed all of the items of property from the SUV and threw them into two large plastic garbage bags. As they loaded the bags, Lanzisero did not write down any of the items that they removed from the vehicle. Vasquez then locked the vehicle, thanked Lanzisero for his assistance and left with the two bags (A139- A146). 10 The Hearing Court Decision In a decision and order dated November 18, 2009, the Honorable Daniel P. Conviser denied the appellant’s suppression motion. In so ruling, he held that even though P.O. Lanzisero’s conduct deviated from the requirements of the N.Y.P.D. Patrol Guide in certain respects, his purpose in searching the appellant’s vehicle was to prepare an inventory because the car had been seized for forfeiture, and he had prepared a meaningful inventory list of the items of property found in the appellant’s vehicle. Based on those findings, he concluded that the search of the vehicle was a valid inventory. The Trial The People’s Case P.O. Christopher White, assigned to the 7th Pct. which covered the Lower East Side section of Manhattan, was in uniform in a marked patrol car during the early morning hours of June 8, 2008. At about 2:15 a.m., he was on Henry Street approaching Clinton Street when he claimed to observe a silver Lexus SUV parked at an angle by a fire hydrant blocking traffic. While waiting for a response to his computer check of the Lexus’ license plate number, he turned on the lights on his patrol car to “stop the car” (A169-A174, A196-A201, A215-A216). 11 As White approached, he observed the appellant exit the driver’s side of the Lexus. The headlights on the Lexus were on and the engine was running, though White could not say whether the ignition was operated by key or button. And though he could not recall whether the appellant was holding anything in his hand, he claimed that he noticed that the appellant was “having trouble walking” and that his eyes were red and “somewhat watery”. As he got closer, he claimed that he could smell the odor of alcohol on his breath. After determining that the appellant was intoxicated, White attempted to arrest him. At that time, the appellant became belligerent before he was handcuffed. However, he was not charged with resisting arrest (A174-A178, A194-A196, A207-A211, A228-A229). After the appellant was handcuffed, White removed his sneakers to see if he had any contraband in them. When other police officers arrived at the scene, White turned the appellant over to P.O. Lanzisero who, because of overtime pay and scheduling considerations, was assigned by the sergeant whom he’d been driving to be the arresting officer. White admitted that he made absolutely no entries in his memo book regarding his encounter with the appellant. And although he recalled that there was a crowd of people who were yelling at the scene, he could not remember anything that any of those people had said (A178-A183, A187-A193, A204-A207, A213-A214, A216-A221, A229-A230). 12 On redirect examination of White by the prosecutor, the following exchanges took place: Q. What is the most important thing that I instruct you to do every time that you come in here and testify? A. Tell the truth. Q. What about in regards to what you read in your testimony versus what you remember? A. Your best testifying to what you remember. Q. And let me ask you a question. Do you know – have you ever, besides that night have you ever seen Kenneth Padilla? A. No. Q. Do you have any reason in here to come and not tell the truth? A. No. MR. POTASHNICK: Objection. THE COURT: Overruled. A. No. Q. In fact, if you came here and was found you were not telling the truth, could you loose [sic] your pension? MR. POTASHNICK: Objection. That’s 13 speculation. THE COURT: Yeah. Move on. Well, overruled. Overruled. Q. Have you heard of police officers being prosecuted for perjury? A. Losing my pension would be the least of my worries. Doing jail time is more likely for a police officer found guilty of perjury. Q. And who prosecutes perjury in this county? A. The district attorney – Manhattan District Attorney’s office. (A227-A228). P.O. Manuel Almanzar, assigned to the Manhattan South Task Force, operated the Intoxilyzer 5000, a machine used to measure the level of alcohol in a subject’s breath. On the morning in question, Almanzar was in the testing room at the 7th Pct. when the appellant was brought in. When he instructed him regarding the procedures for blowing into the Intoxilyzer machine, the appellant just sat quietly on a bench and refused to take the test. However, Almanzar never asked the appellant if he was willing to perform a coordination test so none was ever conducted. Nevertheless, because the appellant’s eyes were bloodshot, and because he had an odor of alcohol on his breath, Almanzar concluded that he was intoxicated (137-184). 14 P.O. William Lanzisero, assigned to the 7th Pct., was on patrol on June 8, 2008. At about 2:15 a.m., he observed P.O. White and his partner P.O. Cercel attempting to handcuff the appellant, who was flailing his arms, at the intersection of Clinton Street and Henry Street. Nearby, he noticed that there was a Lexus SUV parked about three feet off the curb by a fire hydrant and about four or five people in front of a bodega. After the appellant was subdued, Lanzisero volunteered to take the arrest, a task that enabled him to earn 15 hours of overtime pay. He then transported the appellant to the police station while another officer drove the Lexus there (A236- A244, A281-A293). Even though Lanzisero observed that the appellant’s face did not appear flushed; that his balance was steady; that his clothes were “orderly”, and that his speech was clear, he concluded that he was intoxicated because he had an odor of alcohol on his breath and appeared to be agitated. He then escorted the appellant into a room where the Intoxilyzer test was to be performed. Lanzisero remained in that room throughout the testing process. Though the appellant refused to take the Intoxilyzer test, he was never asked to perform a coordination test (A247-A250, A294-A305, A318-A323). Some time before 4:00 a.m., as Lanzisero was about to begin inspecting the Lexus, the appellant’s sister, a police officer, arrived at the station house. After 15 he permitted her to speak with her brother, Lanzisero placed a number of items of property that he had removed from the Lexus in plastic bags and gave them to her. After the appellant’s sister left with the bags, Lanzisero searched the trunk of the vehicle and observed one large stereo speaker, four smaller ones and some amplifiers and subwoofers which were screwed into the back seat and floor of the trunk. Over the next hour, Lanzisero disassembled the speakers and components and removed them so that they could be inventoried. Underneath the speakers was the spare tire compartment. When he opened that compartment, he found a black leather bag. Inside that bag were seven loose rounds and a Smith & Wesson .357 Magnum revolver with two rounds in the cylinder. Lanzisero donned plastic gloves to unload the firearm and then vouchered the bag, rounds and firearm separately. However, he found no items belonging to the appellant in that area of the vehicle (A250-A261, A263-A268, A308-A317, A326-A328). Yan Wong, a representative of the New York State Department of Motor Vehicles, located the records for a Lexus SUV bearing the plate number DPC8130. According to those records, the appellant registered the vehicle on January 19, 2008 and surrendered the plates on October 27, 2008 (312-321). Det. Salvatore La Cova, assigned to the Microscopy Section of the NYPD Firearms Analysis Unit, tested the Smith & Wesson .357 Magnum revolver 16 and the rounds of ammunition vouchered by P.O. Lanzisero. As a result, he determined that the firearm and ammunition were operable (322-339). P.O. Ionel Cercel was patroling with his partner P.O. White in the 7th Pct. during the early morning hours of June 7, 2008. At about 2:15 a.m., he was on Henry Street in the vicinity of Clinton Street when he noticed a silver Lexus SUV with its daylights on and emitting exhaust fumes parked by a fire hydrant. As Cercel approached the rear of that vehicle, White approached the driver’s side and spoke with the appellant who was seated in the driver’s seat. When the appellant exited the vehicle, it appeared that his face was flushed and his eyes bloodshot. However, despite having previously testified that the appellant was “unable to stand on his feet”, Cercel could not recall having made such a claim. When White attempted to place him under arrest, the appellant became “verbal and vocal” and twisted his body to avoid being handcuffed. After the appellant was subdued, Cercel performed “crowd control” duties (340-359). On a subsequent occasion, “[t]owards the end of February”, Cercel stopped a black Lexus SUV with excessively tinted windows. The appellant was driving that SUV and was issued a summons for the window violation (347-348). Asako Ishii, a criminalist employed in the Forensic Biology Department of the NYC Office of the Chief Medical Examiner, received three swabbings from the 17 Smith & Wesson .357 Magnum revolver and the leather bag vouchered by P.O. Lanzisero. Ishii tested the swabbings from the revolver and concluded that while they did contain human DNA, they did not contain sufficient amounts of DNA to be matched with any human beings. She also tested the zipper on the leather bag and likewise determined that it contained insufficient DNA for comparison. However, she did not test any other portion of the bag to determine if a sufficient amount of DNA for comparison could be extracted (374-416). P.O. Pasquale Coiffi, assigned to the NYPD Manhattan South Evidence Collection Unit, was called to the 7th Pct. on June 7, 2008 at about 10:00 a.m. Upon his arrival, P.O. Lanzisero gave him a Smith & Wesson .357 revolver. Coiffi swabbed the revolver with Q-tips in an attempt to extract DNA specimens. He then placed the revolver in a fuming chamber in an attempt to lift latent fingerprints. However, he was unable to detect any fingerprints of value on that revolver (417- 430). Coiffi did not swab the black leather bag that P.O. Lanzisero had recovered from the trunk of a vehicle. Nor did he conduct a fingerprint examination of any of the rounds of ammunition that accompanied the revolver, even though he acknowledged that the cartridges were metallic and smooth and were therefore a good source for extracting latent fingerprints (431-440). 18 The Defense Case Yvette Vasquez, was the appellant’s sister and was a police officer employed by the NYC MTA. She was familiar with her brother’s Lexus SUV because she had occasionally used it to go shopping and run other errands. She had also seen other family members and friends of the appellant using his vehicle (A331- A332, A336-A340, A343). On June 7, 2008 at about 4:00 a.m., Vasquez received a phone call from the appellant who told her that he was under arrest at the 7th Pct. and needed her to pick up his personal belongings. When Vasquez arrived at the precinct, P.O. Lanzisero gave her the appellant’s wallet, cell phone, coins and some papers. She then signed Lanzisero’s memo book acknowledging receipt of those items (A332- A334, A344-A349). Following a brief conversation in which Lanzisero learned that Vasquez had been in the same class which he had attended at the Police Academy, he asked her if she had a vehicle nearby. When Vasquez replied that she did, Lanzisero asked if she wanted to take her brother’s personal property that remained in his vehicle. Vasquez agreed and then went outside with Lanzisero and removed numerous items from the appellant’s Lexus SUV and placed the items in two plastic garbage bags. However, she did not remove the speakers which were installed behind the back seats 19 of the vehicle in the trunk. After she filled the bags, she again signed Lanzisero’s memo book and left (A334-A339, A349-A364). Luz Martinez was the appellant’s girlfriend and had known him most of her life. On the night of June 6, 2008, she was at her uncle’s home when she spoke with the appellant by phone and then agreed to go out with him. When the appellant arrived in his SUV, he told her that he was tired and asked if she wanted to drive. Martinez, who had driven the SUV on prior occasions, and had seen a co-worker and friends of the appellant driving the vehicle in the past, agreed and then drove with the appellant to the South Street Seaport and remained there with him for about an hour and a half. She then drove with him to Clinton Street and Henry Street and parked next to a fire hydrant. She and the appellant then exited the vehicle and entered a grocery store to purchase drinks. As Martinez was paying for her drink, she asked the appellant, who was outside the store speaking with some friends, to retrieve her cell phone from his vehicle. She observed the appellant walk towards his vehicle and reach through the window to pick up her cell phone. She then heard a “commotion” and heard police officers yelling at the appellant to get back in the vehicle. When Martinez approached the officers and told them that she had been driving, one of the officers replied, “Shut the fuck up before you get arrested” (A369-A374, A381-A383, A387-A398). 20 When Martinez went to the SUV to retrieve her purse, an Asian officer offered to drive her to the precinct. The officer then drove her to the 7th Pct. in the appellant’s SUV. There, the desk officer showed her two cell phones and gave her the one that she identified as hers. Martinez remained at the precinct for about two hours. When she stepped outside, she observed three male officers and one female officer searching the interior of the appellant’s SUV. When the female officer noticed that she was staring at them, she and the other officers closed the doors to the SUV and walked inside the station house (A375-A381, A394-A395). Joshua Steinglass, a prosecutor employed by the New York County District Attorney’s Office, interviewed P.O. Cercel regarding the appellant’s arrest on July 7, 2008. In his notes reflecting that interview, he wrote that Cercel had informed him that the “defendant [was] out of [the] car when we got there”. And though Steinglass claimed that as the interview progressed, it became evident to him that the appellant was not out of the car at the time Cercel had arrived, he never amended his notes to indicate that he had misinterpreted Cercel’s earlier statement (533-563). Nageeb Alguhiem was the owner of a delicatessen at 207 Clinton Street in Manhattan. On July 7, 2008, at about 2:00 a.m., he was working behind the counter when the appellant, whom he knew as “Dren” and his girlfriend, whom he 21 knew as “Mercy”, pulled up outside his store in a Lexus. After the appellant’s girlfriend exited the Lexus from the driver’s side, she and the appellant entered the store and purchased soft drinks. A short time later, when Alguhiem heard police sirens, he exited the store briefly to see what was happening. After he reentered his store to continue serving customers, a police officer entered and asked him if he had a video camera outside his store. When Alguhiem replied that the only video camera he used was inside his store, the officer left and did not ask him for the videotape (565-586). Thomas Sbordone was a retired lieutenant from the NYPD and was the appellant’s uncle. During the Memorial Day weekend of 2008, approximately one week prior to the events in question, the appellant’s wife and children were visiting Sbordone at his vacation home in Pennsylvania. When the appellant’s wife attempted to start her silver Lexus to return to New York, the vehicle stalled. Sbordone managed to start the vehicle and drove it for a while. But when the vehicle continued to stall, he decided that it would be safer to drive the appellant’s wife and children to New York in his own car. When he opened the trunk of the Lexus to transfer the luggage into his car, he observed five speakers that were mounted against the rear seats of the vehicle (A399-A403, A413-A420). 22 The People’s Rebuttal Case The parties stipulated that at a prior proceeding held in February, 2010, when delicatessen owner Nageeb Alguhiem was asked if he had observed the inside of the Lexus when the police arrived on the day in question, he stated, “No, I don’t see the inside. I come back, take my business – take care of my business”. However, when he was subsequently asked if he had observed the appellant’s girlfriend Mercy in the driver’s side of the Lexus when it first pulled up, he replied “yes” (632-633). The Prosecutor’s Summation In his summation, the prosecutor argued that in order for the jurors to accept the appellant’s defense, they would have to conclude that the police “risked their pension, their freedom and everything for a person that they don’t know” (A427); that the appellant wanted them to believe that the police “wanted to risk their careers and frame” him (A428), and that P.O. White was “willing to risk his pension and his career” to convict the appellant (A429). In addition, he argued that “If the police really wanted to get the defendant, why would they say the car wasn’t in motion? Why wouldn’t they make up something? Because they’re bound by the truth” (A442). To support his argument that the appellant was guilty of criminal possession of a weapon, the prosecutor argued “Even if that gun was somebody else’s 23 gun, but it’s in his car, and he’s in possession of it .... Guess what? He’s in possession of it. He’s still guilty” (A434). And in his characterization of the defense, the prosecutor argued that it was like “throwing something on the wall and trying to get it to stick – just distraction after distraction” (A436). The Deliberations, Verdict & Sentence On the first day of their deliberations, the jurors requested all of the evidence, a readback of Nageeb Alguhiem’s testimony and a re-definition of operating a motor vehicle while intoxicated (753-754). After an overnight recess, the jurors requested re-definitions of constructive possession, the automobile presumption and the crime of criminal possession of a weapon in the second degree (761, 765). After a luncheon recess, the jurors advised that they were “at an impasse on both counts” (769). In response, the trial judge delivered an Allen charge and the deliberations continued (771-775). Following a second overnight recess, the jurors announced their verdict, finding the appellant guilty of criminal possession of a weapon in the second degree and not guilty of operating a motor vehicle while intoxicated (779-780). Upon his conviction, the appellant was sentenced to a determinate term of imprisonment of seven years. 24 ARGUMENT POINT I THE PEOPLE FAILED TO ESTABLISH THAT THE POLICE CONDUCTED A VALID INVENTORY SEARCH OF THE APPELLANT’S VEHICLE. THE FIREARM SEIZED DURING THAT SEARCH SHOULD THEREFORE HAVE BEEN SUPPRESSED. After the appellant was arrested for operating a motor vehicle while intoxicated, a crime for which he was acquitted, the police impounded his SUV for the ostensible purpose of forfeiting it. During the ensuing search of the vehicle by arresting officer Lanzisero, which lasted several hours, numerous items of property were removed and given to the appellant’s sister, without an itemization of what those items were. In addition, Lanzisero acknowledged that he used the search as an opportunity to look for hidden compartments that might contain narcotics, and acknowledged further that some of the vehicle’s seats had been ripped open during the search. Then, after deciding that the stereo speakers in the trunk compartment had to be removed, Lanzisero disassembled them and observed that they had been covering a spare tire compartment. Upon opening that compartment, Lanzisero discovered a leather bag which contained a loaded revolver. Based on this record, it cannot be concluded that the police conducted a proper inventory search of the 25 appellant’s vehicle. Accordingly, the suppression court erred when it denied the appellant’s motion to suppress the revolver. The appellant’s conviction must therefore be reversed and the indictment dismissed. The United States Supreme Court has repeatedly held that “the mandate of the [Fourth] Amendment requires adherence to judicial processes ... and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967), quoting, United States v. Jeffers, 342 U.S. 48, 51 (1951). One exception to the warrant requirement of the Fourth Amendment is the inventory search. People v. Sullivan, 29 N.Y.2d 69 (1971). For an inventory search of a vehicle to be considered valid, several criteria must be satisfied. First, it must be established that the police were authorized to impound the vehicle and conduct an inventory of its contents. People v. Johnson, 254 A.D.2d 500 (2nd Dept. 1998). Second, the search must be conducted according to a familiar routine procedure. Colorado v. Bertine, 479 U.S. 367, 375 (1987). Third, the procedure must itself be reasonable in that it must be rationally designed to meet the objectives that justify the search in the first place. Florida v. Wells, 495 U.S. 1, 4 (1990). And fourth, the procedure must limit the discretion of the police 26 officer who conducts the search. People v. Galak, 80 N.Y.2d 715, 719 (1993), citing, Florida v. Wells, supra. Judged by the foregoing standards, it is clear that the search of the appellant’s vehicle was unreasonable. In the first place, it is questionable whether the police were authorized to impound the appellant’s SUV at all. Generally, the police may impound a vehicle where the arrestee is “otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots.” People v. Miles, 3 Misc.3d 566, 570 (City Court, City of Rochester 2003), citing, United States v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996). In this case, regardless of how the suppression court viewed Luz Martinez’ credibility, it was never disputed that she was present when the appellant was arrested. Accordingly, there was no need for the police to “cast about” to find a person who would have been willing and able to drive the appellant’s SUV away. People v. Schwing 13 A.D.3d 725, 726 (3rd Dept. 2004). In short, if the police simply wanted to move the appellant’s SUV from the location where it was parked, they could have asked Martinez if she were a licensed driver and if she were willing to drive the vehicle away. Instead, when Martinez approached the officers and informed them that she had been driving the SUV, she was warned that she would be arrested if she didn’t stop talking. Thus, it appears that the police made no attempt to determine if the appellant’s SUV could be moved from the scene in 27 some manner other than by impoundment. People v. Griffin, 116 Misc.2d 751 (Sup. Court, New York County 1982). Under the totality of the circumstances, the impoundment of the vehicle cannot be considered reasonable or lawful. United States v. Duguay, supra. Moreover, even if it is concluded that the impoundment of the appellant’s SUV was lawful, the manner in which P.O. Lanzisero conducted his search was not. For one thing, it is far from clear whether the search of the vehicle was truly an inventory search. The record discloses that when Lanzisero was questioned about his purpose in searching the vehicle, he grudgingly conceded that he was actually looking for evidence: Q. And you don’t remember telling ADA Steinglass about looking for a hidden compartment in the car like for narcotics, but it was empty? Nothing in the bag? A. I remember as far as I went back out there, I did notice that the back seats – the panels were off. Sometimes people go in there to hide drugs. But as far as me purposely going to look for any compartments – Q. So – THE COURT: Let him finish. A. As far as me going to look for these compartments, no. I just went to get the speakers 28 and voucher those. Q. But when you looked in the car three and a half hours later and you saw that those panels were a bit askew? A. Yes. Q. You opened up a closed panel in the car, and you told Steinglass you looked in the thing, but it was empty, correct? A. Correct, but – Q. So – THE COURT: Let him finish. A. I didn’t open them up. Q. So you were looking for evidence of narcotics in a place where you know criminals hide narcotics? A. Correct. Q. You said you made all these arrests, right? A. Correct. Q. So you were looking for evidence when you were in the car? You saw it and you made a little search? Nothing was there and you continued on, right? A. Correct. (A99-A100). 29 Based on the foregoing exchange, it is clear that P.O. Lanzisero’s purpose in searching the appellant’s SUV was not merely to inventory its contents, but to search for contraband as well. And the photographs received in evidence at the hearing, which showed that the back seats of the vehicle had been ripped open, provide further support for the conclusion that a vigorous search for evidence was conducted by the police in this case. Under the circumstances, it cannot be concluded that the People met their burden of establishing that a valid inventory search was conducted in this case. People v. Wright, 285 A.D.2d 984, 985 (4th Dept. 2001). Moreover, contrary to the suppression court’s holding, P.O. Lanzisero did not follow standard procedures for conducting an inventory search. For one thing, though he claimed that the NYPD Patrol Guide required that all items not originally installed in a vehicle had to be removed before the police pound would accept the vehicle, he never explained how he knew that the stereo speakers and amplifier affixed in the trunk of the Lexus were not installed by the manufacturer or by the dealer who sold the vehicle. Without a showing of such expertise, his conclusion that the stereo system in the trunk did not “come with” the vehicle was questionable, at best. Furthermore, contrary to the Appellate Division’s conclusion, P.O. Lanzisero did not prepare a meaningful inventory of the contents of the appellant’s 30 SUV. People v. Johnson, 1 N.Y.3d 252, 256 (2003). The record reveals that when Lanzisero and Yvette Vasquez emptied the contents of the vehicle and placed them in garbage bags, he failed to make a proper itemization of the property found. He did not list any of the items of property recovered from the front or rear of the vehicle. Indeed, when asked what items of property he had found in those areas of the vehicle, he was vague and unsure. In light of this testimony, it cannot be concluded that the search in this case was “designed to produce an inventory”. People v. Gomez, 13 N.Y.3d 6, 11 (2009). Furthermore, while P.O. Lanzisero’s decision to give the appellant’s sister the contents of the vehicle might have been commendable as a benevolent gesture, it did not comport with the requirement that an inventory search “limit the discretion of the officer in the field”. People v. Galak, 80 N.Y.2d at 719. Once the police made the decision to impound the appellant’s vehicle, it was incumbent on the officers to follow established protocols. But Lanzisero violated those protocols when he emptied the contents of the appellant’s vehicle and handed them to Vasquez without first noting what he had given her. Indeed, Lanzisero acknowledged that he violated those protocols during the following exchange: Q. In the patrol guide, is there any guidance at all authorizing you to take property out of a car that’s about to be impounded and give it to someone 31 else? A. No. Q. The answer is no, right? A. Right. Q. So in this particular case, you did not follow the patrol guide that is given to the New York City Police Department, correct? * * * A. Correct. Q. And in this particular case, you took it upon your own discretion, your own choice, your own deviation from the policy to give a person who’s not a police officer some property from that car, correct? A. She is a police officer. Q. A police officer involved in this case? A. Right. It was done as a courtesy, yes. Q. It was a family member? A. Yes, it was done as a courtesy. Q. You chose to give someone who you really didn’t know – A. Correct. 32 Q. You chose to give someone this man’s property, which actually violates the rules as courtesy, correct? A. Correct. (A76-A77). In short, Lanzisero’s “courtesy” in handing over the contents of the appellant’s vehicle to his sister was exactly the type of discretion that has been forbidden with respect to inventory searches. As this Court has held: But when “uncanalized discretion” is ceded to those in the field, there is created not just the possibility but the probability that the search and seizure of a citizen’s personal effects will be conducted inconsistently, subject to caprice and the personal preferences for the individual officers - in short, it will be conducted arbitrarily .... Arbitrary decision-making about what to seize, no less than arbitrary decision-making about what to search, creates unacceptable risks of unreasonableness in an inventory search policy. People v. Galak, 80 N.Y.2d at 721. In sum, the search of the appellant’s vehicle did not comply with the requirements of a proper inventory search and the revolver recovered during that search should have been suppressed. And since suppression of the revolver would leave the People with no evidence to prosecute the appellant, the judgment of conviction should be reversed and the indictment dismissed. 33 POINT II THE PEOPLE FAILED TO PROVE THE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT. To prove the appellant guilty of criminal possession of a weapon in the second degree under Penal Law §265.03, the People obviously had to prove that he knowingly possessed the loaded firearm found in the spare tire compartment in the trunk of his vehicle approximately five hours after his arrest for operating a motor vehicle while intoxicated. However, other than the fact that the vehicle was registered to him, there was absolutely no evidence linking the appellant to the firearm and no evidence to show that he had knowledge that the firearm was in the compartment where it was found. Thus, even when viewing the record in the light most favorable to the People, there was insufficient evidence to prove the appellant guilty of criminal possession of a weapon in the second degree beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); People v. Contes, 60 N.Y.2d 600 (1983). His conviction should therefore be reversed and the indictment dismissed. Penal Law §265.15(3) provides in pertinent part that “[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon ... is found”. However, the presumption is a rebuttable one and 34 “may be nullified if the contrary evidence is strong enough to make the presumption incredible.” People v. Lemmons, 40 N.Y.2d 505, 510 (1976). In all cases, the People must still prove that a defendant had the ability and intent to exercise dominion and control over the weapon in accordance with Penal Law §10.00(8). People v. Rivera, 77 A.D.2d 538, 539 (1st Dept. 1980). At a minimum, the People must establish that the weapon was physically accessible to the defendant. Otherwise, there is no reasonable basis for concluding that the defendant was in constructive possession of the weapon. See, Ulster County Ct. v. Allen, 442 U.S. 140, 165 (1979); People v. Ballard, 133 Misc.2d 584, 589 (Sup. Court, New York County 1986) (“A person to whom an illicit object is not directly available cannot reasonably be inferred to possess it”). Thus, a defendant’s ability and intent to exercise dominion and control over a weapon in an automobile may be established where a gun was found in the carburetor and access to the hood was accomplished by simply popping the hood lock which was located inside the automobile and clearly accessible to the defendant driver. People v. Hicks, 138 A.D.2d 519, 522-523 (2nd Dept.), lv. denied, 71 N.Y.2d 969 (1988). However, where there is no rational basis for concluding that a defendant exercised control over a weapon concealed in the trunk of an automobile, a conviction for criminal possession of a weapon cannot be permitted to stand. People v. Wilt, 105 A.D.2d 1089, 1090 (4th Dept. 1984). 35 Applying these principles to the case at bar, it is clear that the evidence fell short of establishing that the appellant knowingly possessed the firearm recovered in this case. According to P.O. Lanzisero, the revolver was in a leather bag inside the spare tire compartment in the trunk area of the SUV. In addition, the compartment in which the bag was concealed was covered by audio speakers which had to be disassembled before Lanzisero could even open the compartment up. Moreover, there was no evidence adduced to show that an occupant of the SUV could open the hatch to the trunk area from inside the vehicle. Given the location where the revolver was found, and its inaccessibility to the appellant, there was simply no reasonable basis for concluding that he had exercised dominion or control over that weapon. Ulster County Ct. v. Allen, 442 U.S. at 165. Furthermore, the fact that the vehicle was registered to the appellant, or that he might have occupied it at the time he was confronted by the police, did not establish the nexus necessary to prove his constructive possession of the weapon. The defense presented credible evidence that the appellant was not the only person who had operated the vehicle. Retired police lieutenant Thomas Sbordone had himself driven the vehicle only days before the incident when the appellant’s wife had attempted to drive it to New York. P.O. Yvette Vasquez had driven the SUV on many occasions and had observed it driven by the appellant’s friends and other family 36 members as well. Likewise, Martinez testified that on a number of prior occasions, she had observed a co-worker and friends of the appellant driving the SUV and testified further that it was she who actually drove the SUV on the day in question. In short, given the number of people who had operated the vehicle prior to the date of the charged offense, it could not be concluded that the People met their heavy burden of proving that the appellant had constructively possessed the revolver discovered by P.O. Lanzisero. See, People v. Olivo, 120 A.D.2d 466, 467 (1st Dept. 1986) (holding that access alone, without a showing of dominion and control, cannot support an inference of possession where access was shared by defendant with other adults); People v. Brown, 181 A.D.2d 1041, 1042 (4th Dept. 1992) (holding that evidence that defendant constructively possessed weapon must exclude to a moral certainty every reasonable hypothesis of innocence). Further doubts that the appellant was guilty of knowingly possessing the revolver arose from the lack of any physical or forensic evidence connecting him to the weapon. P.O. Coiffi examined the revolver for latent fingerprints but found none. He also swabbed the revolver and the leather bag which held it in order to test those items for the presence of DNA. But criminalist Ishii examined the specimens recovered by Coiffi and could not identify the DNA as the appellant’s. Moreover, there were no items found in the bag establishing any connection to the appellant. 2In fact, this was a re-trial following a mistrial that was declared after the first jury announced that it was deadlocked. 37 Accordingly, there was absolutely no evidence to show that the appellant had ever touched the revolver or the bag in which it was found, or that he had even seen it prior to its discovery by the police. People v. Williams, 146 A.D.2d 659, 660-61 (2nd Dept. 1989). The weakness of the People’s case was demonstrated during the jury’s deliberations. Though the case was fairly simple, the jury struggled for more than two days to reach a verdict. During the course of their deliberations, the jury requested re-instruction on the principles of constructive possession, the automobile presumption and the charge of criminal possession of a weapon in the second degree. And even after receiving those re-instructions, the jury still advised the trial judge that they were deadlocked.2 In sum, the case against the appellant was filled with reasonable doubts that he had knowingly possessed a firearm. Under the circumstances, the People failed to prove his guilt of the crime of criminal possession of a weapon in the second degree with legally sufficient evidence. The judgment of conviction should therefore be reversed and the indictment dismissed. 38 POINT III THE APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY T H E N U M E R O U S , E G R E G I O U S IMPROPRIETIES COMMITTED BY THE TRIAL PROSECUTOR. During his redirect examination of P.O. White, the trial prosecutor questioned him at length regarding the instructions he had given him about testifying; whether he had any motive to lie; whether he knew that police officers had been prosecuted for perjury, and whether he knew that it was the New York County District Attorney who prosecuted such offenses (A227-A228). Then, in summation, the prosecutor returned to this theme, arguing to the jurors that in order for them to acquit the appellant, they would have to conclude that the police were willing to risk their careers, pensions and freedom by lying (A427-A429). In the same vein, the prosecutor contended that the police were “bound by the truth” (A442). In his comments on the defense, which he characterized as a “distraction”, the prosecutor suggested that it was like “throwing something on the wall and trying to get it to stick” (A436). And in his comments on the law, he argued that “[e]ven if that gun was somebody else’s gun, but it’s in his car, and he’s in possession of it .... Guess what? He’s in possession of it. He’s still guilty” (A438). It is submitted that each of the foregoing improprieties contributed to the denial of the appellant’s due process 39 right to a fair trial. Cumulatively, there is no question that the prosecutorial improprieties contributed to the verdict. Based on this misconduct, the appellant’s conviction should be reversed and a new trial ordered. It is well settled that the prosecutor’s role is more than that of a mere advocate or partisan, and that it is as much the function of the prosecutor, as it is of the court, to assure every defendant a fair trial and to refrain from improper and over- zealous advocacy. People v. Steinhardt, 9 N.Y.2d 267 (1961). In discussing the prosecutor’s unique role, the United States Supreme Court has stated: He may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. Berger v. United States, 295 U.S. 78, 88 (1934). To ensure that prosecutors will discharge their duty of fair dealing, our courts have held that a conviction will be reversed when certain prosecutorial improprieties are committed. For example, it is absolutely improper for a prosecutor to make himself an unsworn witness by supporting his case with his own veracity and position. People v. Moye, 12 N.Y.3d 743 (2009), citing, People v. Lovello 1 N.Y.2d 436, 439 (1956). Nor may a prosecutor vouch for the credibility of his witnesses. People v. Bailey, 58 N.Y.2d 272 (1983). It is equally impermissible for a prosecutor to denigrate defense counsel or the defense presented. People v. Diaz, 170 A.D.2d 40 202 (1st Dept. 1991). And it is particularly improper for a prosecutor to mislead the jury by misstating the law. People v. Butler, 185 A.D.2d 141, 144 (1st Dept. 1992). Sadly, the prosecutor committed all of these improprieties at the appellant’s trial. The first serious impropriety took place during the redirect examination of P.O. White. Over defense counsel’s objection, the trial prosecutor first asked White “What is the most important thing that I instruct you to do every time that you come in here and testify?” to which White replied “Tell the truth” (A227). Through that question and answer, the prosecutor blatantly made himself an unsworn witness by supporting his case with his own veracity and position. People v. Moye, supra. Under the circumstances, there was a significant danger that “the jury, impressed by the prestige of the office of the District Attorney” would “accord great weight to the beliefs and opinions of the prosecutor”. People v. Paperno, 54 N.Y.2d 294, 301 (1981). But the foregoing impropriety was only a prelude to the misconduct that was to follow. Immediately after he had informed the jury that he had counseled White to tell the truth, the prosecutor questioned him at length regarding the consequences that would befall him if he committed perjury. In the course of that inquiry, he established that if a police officer committed perjury, he could be prosecuted, lose his pension and be sent to prison, and that it was the Office of the 41 New York County District Attorney (the prosecutor’s employer) that prosecuted such cases (A227-A228). This line of inquiry amounted to the most egregious form of bolstering of the credibility of police officers and interjected matters that were extraneous to the case to the detriment of the appellant. People v. Webb, 68 A.D.2d 331, 333 (2nd Dept. 1979), citing, People v. Posner, 273 N.Y. 184, 190 (1937). And even though the inquiry was only conducted with one police officer, it clearly conveyed to the jury that all police officers were subject to the same truth-telling constraints. Moreover, the prosecutor compounded the prejudice caused by his improper inquiry when, in the course of his summation, he argued that in order to acquit the appellant, the jurors would have to conclude that the police “risked their pension, their freedom and everything for a person that they don’t know” (A427); that the appellant wanted them to believe that the police “wanted to risk their careers and frame” him (A428), and that “[i]f the police really wanted to get the defendant, why would they say the car wasn’t in motion? Why wouldn’t they make up something? Because they’re bound by the truth” (A442). These arguments were particularly reprehensible since they shifted the burden of proof to the defense, vouched for the truthfulness of the police witnesses, mischaracterized the defense, and placed the prestige of the prosecutor’s office and the police department at issue. People v. 42 Collins, 12 A.D.3d 33, 37-38 (1st Dept. 2004); People v. DeJesus, 137 A.D.2d 761, 762 (2nd Dept. 1988); People v. Roman, 150 A.D.2d 252, 257 (1st Dept. 1989); People v. McKutcheon, 76 A.D.2d 934 (2nd Dept. 1980). The trial prosecutor was certainly entitled to respond to defense counsel’s arguments, provided he did so within the bounds of permissible rhetorical comment. People v. Galloway, 54 N.Y.2d 396, 399 (1981). However, he was not free to denigrate the defense or defense counsel. People v. Pagan, 2 A.D.3d 879, 880 (2nd Dept. 2003). Thus, when the prosecutor argued that the defense was like “throwing something on the wall and trying to get it to stick - just distraction after distraction” (A436), he implied improperly that defense counsel was trying to deceive the jury. In so doing, he not only insulted defense counsel, but the criminal justice system as well. People v. Diaz, 170 A.D.2d at 203, citing, People v. Lombardi, 20 N.Y.2d 266, 272 (1967). Not content to make himself an unsworn witness, vouch for the credibility of his witnesses, shift the burden of proof, and denigrate the defense, the prosecutor also thought it appropriate to misstate the law. People v. Pauli, 130 A.D.2d 389, 391-393 (1st Dept. 1987). When he argued to the jury that the appellant was guilty of criminal possession of a weapon “[e]ven if that gun was somebody else’s gun, but it’s in his car, and he’s in possession of it .... He’s in possession of it. 43 He’s still guilty” (A438), the prosecutor omitted the critical element of knowledge of the possession of the weapon. By making this argument, the prosecutor invited the jury to convict the appellant regardless of whether he knew that the firearm was concealed in his vehicle, a blatant misstatement of the law. People v. Butler, 185 A.D.2d at 144. And when the trial court overruled defense counsel’s objection to the prosecutor’s argument, it had the effect of giving the comment the court’s imprimatur, and thereby exacerbated the possibility of prejudice to the appellant. People v. Rutledge, 179 A.D.2d 404, 405 (1st Dept. 1992). Finally, the prosecutor’s misconduct cannot be deemed harmless. People v. Alexander, 94 N.Y.2d 382, 385 (1999). As was noted, the case against the appellant was underwhelming (See Point II herein). This was a retrial following a mistrial declared after the first jury had hung. The jury in this case struggled for over two days, announcing that they were deadlocked before finally reaching a verdict. Given the weakness of the case, it is very likely that the cumulative effect of the prosecutor’s misconduct tipped the scales against the appellant. People v. Tolbert, 198 A.D.2d 132, 134 (1st Dept. 1993). For this reason, the appellant’s conviction should be reversed and a new trial ordered. 44 CONCLUSION FOR ALL OF THE REASONS STATED IN POINTS I AND II HEREIN, THE APPELLANT’S CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED. IN THE ALTERNATIVE, FOR THE REASONS STATED IN POINT III HEREIN, THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Dated: Bayside, New York August 17, 2012 Respectfully submitted, RANDALL D. UNGER Attorney for Defendant-Appellant Kenneth Padilla 42-40 Bell Boulevard, Suite 302 Bayside, New York 11361 (718) 279-4500