The People, Appellant-Respondent,v.Stanley R. Kims, II, Respondent-Appellant.BriefN.Y.September 11, 2014 TO BE ARGUED BY MARK C. DAVISON, ESQ. TIME REQUESTED: 15 MINUTES APL-2013-00095 Jefferson County Indictment No. 225-10 STATE OF NEW YORK COURT OF APPEALS _____________________________________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, -vs- STANLEY R. KIMS, II, Respondent-Appellant. _____________________________________________________________________________________ REPLY BRIEF FOR RESPONDENT-APPELLANT ________________________________________________________________ BY: MARK C. DAVISON, ESQ DAVISON LAW OFFICE, PLLC P.O. Box 652 Canandaigua, New York 14424 Tel: (585) 394-5222 Fax: (585) 394-5226 Date: February 11, 2014 Table of Contents Table of Authorities…………………………………………………………1 ARGUMENT POINT ONE: THE TRIAL COURT ERRED IN ITS MOLINEUX RULINGS, AND THEREBY DENIED MR. KIMS HIS RIGHT TO A FAIR TRIAL ………………………………………………………………..3 POINT TWO: EVIDENCE FOUND INSIDE THE RESIDENCE ON LERAY STREET SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS SEIZED AS THE RESULT OF A WARRANTLESS “PROTECTIVE SWEEP” BY POLICE………………………………………………………9 POINT FOUR: THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED BECAUSE OF PROSECUTORIAL MISCONDUCT……………………………………………………………15 CONCLUSION……………………………………………………………19 i 1 TABLE OF AUTHORITIES FEDERAL CASES Bailey v United States, ___ US ___, 133 S Ct 1031 [Feb. 19, 2013]……………..15 Maryland v Buie, 494 US 325 [1990]……………………………………………..10 Mincey v Arizona, 437 US 385 [1978]……………………………………………15 Ryburn v Huff, 565 US ___, 132 S Ct 987 [2012]………………………………...11 NEW YORK CASES People v Acevedo, 84 AD3d 1390 [2d Dept 2011], lv denied 17 NY3d 951 [2011]…………………………………………………………………………...4, 17 People v Arafet, 13 NY3d 460 [2009]………………………………………...........8 People v Aruz, 253 AD2d 592 [1st Dept 1998]……………………………………18 People v Bacalocostantis, 111 AD2d 991 [3d Dept 1985]………………………..18 People v Bost, 264 AD2d 425 [2d Dept 1999]………………………………..10, 13 People v Boyland, 79 AD3d 1658 [4th Dept 2011], affd 20 NY3d 879 [2012]...9, 11 People v Bradley, 20 NY3d 128 [2012]……………………………………………4 People v Bryant, 77 AD2d 603 [2d Dept 1980]……………………………..........16 People v Burke, 170 AD2d 1021 [4th Dept 1991], lv denied 77 NY2d 959 [1991]……………………………………………………………………………...16 People v Calabria, 94 NY2d 519 [2000]…………………………………………18 People v Clements, 37 NY2d 675 [1975], cert denied sub nom Metzger v New York, 425 US 911[1976]……………………………………………………….12-13 People v Coles, 105 AD3d 1360 [4th Dept 2013]…………………………………12 People v Fisher, 18 NY3d 964 [2012]……………………………………………18 People v Franklin, 190 AD2d 501 [1st Dept 1993], lv denied 81 NY2d 885 [1993]…………………………………………………………………………….....6 People v Gadsden, 80 AD2d 508 [1st Dept 1981]………………………………...17 People v Giles, 11 NY3d 495 [2008]………………………………………………5 People v Givans, 45 AD3d 1460 [4th Dept 2007]…………………………………..7 People v Gorghan, 13 AD3d 908 [3d Dept 2004], appeal dismissed 4 NY3d 798 [2005]……………………………………………………………………………...18 People v Harper, 100 AD3d 772 [2d Dept 2012], lv denied 21 NY3d 943 [2013]……………………………………………………………………………...10 People v Hernandez, 71 NY2d 233 [1987]………………………………………...5 2 People v Huntsman, 96 AD3d 1387 [4th Dept 2012], lv denied 20 NY3d 1099 [2013]……………………………………………………………………………...18 People v Jackson, 40 AD2d 1006 [2d Dept 1972]………………………………..16 People v Kims, 96 AD3d 1595 [4th Dept 2012], lv granted 21 NY3d 913 [2013]………………………………………………...............................................10 People v Knapp, 52 NY2d 689 [1981]……………………………………………13 People v Lasso-Reina, 305 AD2d 121 [1st Dept 2003], lv denied 100 NY2d 595 [2003]………………………………………………………………………….10-11 People v Lewis, 69 NY2d 321 [1987]………………………………………………5 People v Livingston, 128 AD2d 645 [2d Dept 1987]……………………………..17 People v McAllister, 35 AD3d 300 [1st Dept 2006], lv denied 8 NY3d 925 [2007]……………………………………………………………………………...11 People v McClary, 85 AD3d 1622 [4th Dept 2011]……………………………….16 People v McMillan, 66 AD2d 830 [2d Dept 1978]……………………………16 People v Morales, 20 NY3d 240, 250 [2012]……………………………………4, 8 People v Pagan, 88 AD3d 37 [1st Dept 2011], lv denied 17 NY3d 954 [2011]……4 People v Polk, 84 AD2d 943 [4th Dept 1981]……………………………………..17 People v Raosto, 110 AD3d 524 [1st Dept 2013]…………………………………..6 People v Riback, 13 NY3d 416, 423 [2009]………………………………………18 People v Rivers, 18 NY3d 222 [2011]…………………………………………8 People v Satiro, 72 NY2d 821 [1988]……………………………………………...5 People v Slishevsky, 97 AD3d 1148 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]……………………………………………………………………………18 People v Stewart, 92 AD2d 226 [2d Dept 1983]…………………………….....4, 17 People v Tillman, 87 NY2d 835 [1995]………………………………………….7-8 People v Wheeler, 2 NY3d 370 [2004]………………………………………..10, 12 People v Willis, 107 AD2d 1058 [4th Dept 1985]…………………………………18 People v Wlasiuk, 32 AD3d 674 [3d Dept 2006], lv dismissed 7 NY3d 871 [2006]……………………………………………………………………………...18 People v Yazum, 13 NY2d 302, 304 [1963]………………………………………..7 STATUTES Criminal Procedure Law 300.10 (4)………………………………………………17 3 ARGUMENT POINT ONE: THE TRIAL COURT ERRED IN ITS MOLINEUX RULINGS, AND THEREBY DENIED MR. KIMS HIS RIGHT TO A FAIR TRIAL. In Point Two of his main brief, Mr. Kims argued that there should have been a new trial on all of the charges against him because, throughout these proceedings, the trial court allowed the prosecutors to present highly prejudicial evidence of prior acts by Mr. Kims that were not at all probative of the issue of his guilt on the charges in the indictment. In particular, the trial court allowed proof of prior drug sales, allegations of attempted escape and witness tampering, and testimony concerning Mr. Kims’ alleged gang membership. In her responding brief, the District Attorney counters that the trial court’s Molineux rulings were proper (specifically that the proof of prior drug sales was relevant because it establishes intent to sell), and, if not, then any error in the Molineux rulings does not necessitate a new trial because the evidence against Mr. Kims was overwhelming. Like the Appellate Division, the District Attorney did not specifically address the issue of gang membership. The evidence of gang membership was the most egregious Molineux violation in this case, because it was not relevant to any of the issues at trial. Before a court ever exercises its discretion whether to admit Molineux evidence, there must, “in the first instance, [be] a proper theory of relevance to support the 4 introduction of the testimony” (People v Bradley, 20 NY3d 128, 133 [2012]). There was no such showing here. No testimony established that Mr. Kims’ codefendants or any drug purchasers were gang members, no testimony established that the drugs found in Mr. Kims’ vehicle and in the apartment came from gang members, and no testimony “inextricably interwove” the gang membership with any of the crimes charged in this case. Instead, it appears that the only purpose of the reference to gang membership was to prejudice the jury by portraying Mr. Kims as a gang member. Evidence of alleged gang membership should never have been admitted because there was no connection between gang membership and the charged crimes (see People v Acevedo, 84 AD3d 1390, 1391 [2d Dept 2011], lv denied 17 NY3d 951 [2011]; People v Stewart, 92 AD2d 226, 229 [2d Dept 1983]). Because there was no probative value, and there was enormous potential prejudice to Mr. Kims, it was an abuse of discretion for the trial court to admit the evidence (see People v Pagan, 88 AD3d 37, 39 [1st Dept 2011], lv denied 17 NY3d 954 [2011]). The error in admitting evidence of the gang membership by itself requires a new trial (People v Morales, 20 NY3d 240, 250 [2012]). Moreover, the voluminous evidence that came in regarding prior drug sales was not needed to show intent to sell. This was not a case like People v Hernandez (71 NY2d 233 [1987]), relied upon by the District Attorney. In Hernandez, this 5 Court held that the proof of prior drug sales was plainly relevant on a charge of possession with intent to sell, and became relevant on a criminal sale charge when Mr. Hernandez took the stand and denied ever having sold drugs in his life (71 NY2d at 245-246). In this case, however, evidence that Mr. Kims had sold drugs in the past (especially before his prior felony conviction in 2008) is not relevant to the issue of any dominion and control over the drugs that were found on LeRay Street in April 2010, which is the basis for the First Count of the indictment, charging possession of more than eight ounces of cocaine (S.A. 7) (cf. People v Satiro, 72 NY2d 821 [1988]). Similarly, the evidence that drug dealer Shawn Granger had thrown a party for Mr. Kims before he went off to prison in 2008, and had traded drugs with him before that, is irrelevant to the events of April 2010. Instead, the admission of such evidence only prejudiced Mr. Kims, by tending to show bad character or a propensity to commit the crimes charged (see People v Giles, 11 NY3d 495, 500 [2008]; People v Lewis, 69 NY2d 321, 325 [1987]). It is not dispositive that the Second Count of the Indictment in Mr. Kims’ case charges possession with intent to sell, because it is not disputed that whoever possessed the large amount of cocaine in this case did so with the intent to sell it. There is no reasonable view of the evidence that whoever possessed such a large amount of cocaine did so without intent to sell it (see People v Raosto, 110 AD3d 6 524 [1st Dept 2013]). Mr. Kims’ defense was that he was not the one who possessed the cocaine. The Court’s attention is directed to another case involving possession with intent to sell, People v Franklin (190 AD2d 501, 503 [1st Dept 1993], lv denied 81 NY2d 885 [1993]). In that case, Mr. Franklin was charged with possessing a “flimsy paper bag containing over 100 vials of cocaine” (190 AD2d at 502), and his defense was that it was not he (but someone else present at the scene) who had dropped the bag when the police approached them. The prosecution was permitted (over defense objection) to introduce pages from a small spiral notebook found in Mr. Franklin’s possession that were indicative of drug dealing but were never connected to the bag of cocaine involved in the case. The Appellate Division reversed and remanded for a new trial because there was no permissible application for the disputed notebook pages, and it could not be said that the evidence of prior sales would not have affected the jury’s disposition of the possession charge. “Here, the admission of the disputed evidence constituted little more than an invitation to convict the defendant based upon the speculation that he was a drug dealer who, in such capacity, would have been a likely possessor of drugs” (id. at 503). Similarly, in Mr. Kims’ case, the strategy of the trial attorney was not to controvert the issue of intent to sell, but instead to point the blame at Jeffrey 7 “Chino” Fineout as the person selling drugs on LeRay Street (A. 907-933). Evidence of prior drug sales by Mr. Kims was not relevant on the issue of intent to sell, but instead (as the District Attorney now argues) only made it more likely that he, not Fineout, was the one who possessed the drugs. As such, the evidence was mere propensity evidence, it was an abuse of discretion for the trial court to admit the evidence, and the Appellate Division should have said so (see People v Givans, 45 AD3d 1460, 1462 [4th Dept 2007]). With respect to Mr. Kims’ argument that the trial court erred in allowing evidence of the uncharged attempted escape as proof of consciousness of guilt, the District Attorney’s response is that the attempted escape is admissible even though it resulted from an arrest on a parole violation and not on the underlying drug possession charges, citing People v Yazum (13 NY2d 302, 304 [1963]). Even conceding the admissibility of such evidence in the Yazum case, the proof of the attempted escape should still have been precluded in Mr. Kims’ case. Such proof may be allowed when “it bears on the motive and state of mind in relation to an avoidance of apprehension during immediate flight from a crime and is found to be needed as background material or to complete the narrative of the episode” (People v Tillman, 87 NY2d 835, 837 [1995]), and even then such evidence is admissible only when a trial court finds that its probative value for the jury outweighs the risk of undue prejudice to the defendant (id. at 836). 8 None of the factors identified by this Court in Tillman was present in this case. Mr. Kims was not trying to avoid apprehension during immediate flight from a crime: he had reported to the Probation Department of his own accord, and was being transported from there. The evidence was also not needed as background material or to “complete the narrative” of the drug possession charges at issue in this case; those charges had arisen on April 12, 2010, and the attempted escape did not occur until November 4, 2010 (A. 517-519). Because the evidence had no probative value to outweigh the undue prejudice that its admission caused Mr. Kims, it should never have been admitted. The sheer volume of inadmissible proof of prior bad acts in this case “created a reasonable possibility that the jury’s findings were prejudicially influenced” (Morales, supra, 20 NY3d at 250), and cannot be excused as harmless error on appeal (see People v Arafet, 13 NY3d 460, 473-474 [2009] [Ciparick, J. dissenting]; cf. People v Rivers, 18 NY3d 222 [2011]). Moreover, if this case is to go back for a new trial because of the trial court’s improper instruction to the jury about the room presumption, this Court should take the opportunity to address the improper Molineux rulings by the trial court and the Appellate Division, so that the rulings can be corrected by the court at the retrial. 9 POINT TWO: EVIDENCE FOUND INSIDE THE RESIDENCE ON LERAY STREET SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS SEIZED AS THE RESULT OF A WARRANTLESS “PROTECTIVE SWEEP” BY POLICE. In Point Three of his main brief, Mr. Kims argued that there was an insufficient basis for the “protective sweep” of the LeRay Street premises after his arrest, and that the evidence seized as a result of the protective sweep should have been suppressed. In her responding brief, the District Attorney argues that whether the protective sweep in this case was proper is a mixed question of fact and law that is beyond the review of this Court, and that no evidence was seized during the protective sweep (but was only seized after a properly-obtained search warrant was executed). Mr. Kims recognizes that this Court has held that the question whether a protective sweep is proper can be a mixed question of fact and law; this Court said so in affirming one of the cases cited in Mr. Kims’ main brief (People v Boyland, 20 NY3d 879 [2012]). Mr. Kims is arguing that, under that standard of review, “there is no view of the evidence that would support [the suppression court’s] determination” (People v Wheeler, 2 NY3d 370, 373 [2004]). The evidence in this case must be viewed in light of the sole purpose for a protective sweep recognized by this Court and the U.S. Supreme Court. “To justify entry into an apartment, an officer must possess ‘articulable facts which, 10 taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene’” (People v Bost, 264 AD2d 425, 426 [2d Dept 1999], quoting Maryland v Buie, 494 US 325, 334 [1990] [emphasis added]; see also Wheeler, 2 NY3d at 373 [if the circumstances of a case do not involve “persons who, in hiding, posed a danger to the officers at the scene of the arrest, Buie and its progeny do not apply”]; People v Harper, 100 AD3d 772, 774 [2d Dept 2012], lv denied 21 NY3d 943 [2013]). In Mr. Kims’ case, the Appellate Division held only that, “[c]ontrary to defendant’s contention, the [trial] court properly refused to suppress evidence seized from his apartment subsequent to a warrantless protective search (see People v Lasso-Reina, 305 AD2d 121, 122 [1st Dept 2003], lv denied 100 NY2d 595 [2003]; see generally People v Bost, 264 AD2d 425, 426” (People v Kims, 96 AD3d 1595, 1598 [2012], lv granted 21 NY3d 913 [2013]). In Lasso-Reina, the First Department had affirmed the denial of a suppression motion, holding that the need for a security sweep of a house was not diminished by the fact that the drug defendant had already been arrested in his back yard, because the drug conspiracy was known to have many participants, there were windows from which shots could be fired at police, and the defendant’s stepdaughter had told police that someone was hiding in an upstairs closet. 11 As Mr. Kims argued in his main brief, the factors present in Lasso-Reina were not present in his case, because there was no factual predicate from which Det. McNitt could infer that there was a person inside the premises who posed any sort of threat to the officers or the people who had begun to gather outside. There had been no report of weapons on the premises or an imminent threat of violence (cf. Ryburn v Huff, 565 US ___, 132 S Ct 987, 990-991 [2012]), and the officers themselves had not heard voices, seen people, or been told that there were people inside the house who might pose a threat (cf. People v Boyland, 79 AD3d 1658 [4th Dept 2011], affd 20 NY3d 879 [2012]; People v McAllister, 35 AD3d 300 [1st Dept 2006], lv denied 8 NY3d 925 [2007]). They cannot base the protective sweep on Detective McNitt’s subjective inference from Mr. Kims’ actions after he was arrested, particularly because there was no indication that Jeffrey Fineout (or any defendant) was (or ever had been) armed. Moreover, if Mr. Kims was yelling to bystanders to “call Chino,” the objective inference would seem to be that Chino was somewhere else rather than inside the premises. On the other hand, had Mr. Kims been looking directly at the premises and calling out to “Chino” directly, it may have been proper to infer that Chino was inside the premises. Although some courts (including the Second Department in Bost) have also included the need to preserve evidence as a justification for a protective sweep, this Court’s holding in Wheeler (supra, 2 NY3d at 373) makes clear that officer safety 12 is the only justification for a protective sweep. This Court does not appear to have used exigent circumstances/evanescent evidence cases such as People v Clements (37 NY2d 675 [1975], cert denied sub nom Metzger v New York, 425 US 911[1976]) to support warrantless protective sweeps, and should not do so here. Nevertheless, even assuming arguendo that the need to preserve evidence could be another basis for a protective sweep, there was no reasonable basis for Det. McNitt to assume that there was evidence inside the apartment that was threatened with imminent destruction in this case. Other than a statement by an informant to Det. McNitt two weeks earlier that he had heard Mr. Kims had a stash house on LeRay Street, there is nothing to suggest that there would have been any evidence in the house on April 12 that needed to be preserved, or that there were any co- conspirators inside who might destroy it (see People v Coles, 105 AD3d 1360, 1363 [4th Dept 2013]). Moreover, this was not a case such as Clements. In that case, an informant purchased three marijuana cigarettes inside a residence, and informed the police (who were waiting outside) that there were bricks of marijuana in a dresser drawer inside the residence (37 NY2d at 676-677) and that the sellers (who were inside the residence) “might have become suspicious of what was afoot” (id. at 679). The police arrested the defendant inside the residence, and found marijuana in the dresser where the informant said it would be. By contrast, when Detective McNitt 13 decided to do the protective sweep in this case, Mr. Kims was already under arrest outside of the residence, having left the residence of his own accord, and there was no such evidence that others were inside and suspicious that the police were outside. The only evidence of drugs in the apartment was the statement by an informant to Det. McNitt two weeks earlier. Thus, in this case, “any urgency was gone” (People v Knapp, 52 NY2d 689, 696 [1981]). Thus, the most closely analogous case to Mr. Kims’ case remains the decision of the Second Department in Bost. Here, as in Bost, there was no evidence of a threat to police from inside the premises and the police had the suspect handcuffed outside of the residence. As the Second Department did in Bost, the Fourth Department should have reversed the judgment of conviction and granted Mr. Kims’ motion to suppress the drugs that were seized during the warrantless sweep. The District Attorney argues in her brief that, in any event, no contraband was seized during the protective sweep, only upon execution of the search warrant, and the officers did not mention their observation of cocaine during the sweep as part of their warrant application. The warrant application was based on the cocaine that was found in Robert Sawyer’s possession and inside of Mr. Kims’ vehicle. With respect to the protective sweep, Detective McNitt wrote: “A sweep of the residence was done for officer safety because a warrant to search the residence and vehicle was being obtained. Jeffrey Fineout was 14 located on the couch in the living room. He was secured for safety. He was asked if he lived at the residence. He said no, that it was Stanley Kims’ house” (S.A. 62). There is no way to tell from the record whether any of the officers elaborated upon that account of the sweep when the warrant application was presented to Watertown City Court. It is disingenuous to argue that the seizure of the cocaine during the execution of the warrant constituted an independent basis for the denial of suppression. The discovery of cocaine on the person of Mr. Sawyer cannot justify the issuance of the warrant to search premises alleged to belong to Mr. Kims. Such a theory would eviscerate the Fourth Amendment’s protection of the right to be secure in one’s home. If the touchstone of the Fourth Amendment is reasonableness, it is unreasonable to justify the search of a residence because of the possession of contraband outside of the residence, particularly possession by someone else. “‘[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment’” (Bailey v United States, ___ US ___, ___, 133 S Ct 1031, 1041 [Feb. 19, 2013], quoting Mincey v Arizona, 437 US 385, 393 [1978]). 15 POINT THREE: THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL GRANTED BECAUSE OF PROSECUTORIAL MISCONDUCT. In Point Four of his main brief, Mr. Kims argued that his conviction must be reversed and a new trial must be granted on all of the counts of the indictment because of prosecutorial misconduct in this case. In her responding brief, the District Attorney argues that the alleged prosecutorial misconduct on summation was not preserved for review on appeal, and the alleged bolstering by the prosecutor was a proper response to defense counsel’s summation. The prosecutorial misconduct in this case took several forms, not just improper bolstering. Certainly bolstering is improper (see People v McClary, 85 AD3d 1622 [4th Dept 2011]; People v Bryant, 77 AD2d 603 [2d Dept 1980]; People v Jackson, 40 AD2d 1006 [2d Dept 1972]). It was also misconduct for the prosecutors to continually elicit testimony and try to portray Mr. Kims as a “large- scale drug dealer” (People v Bryant, supra, 77 AD2d at 604; People v McMillan, 66 AD2d 830 [2d Dept 1978]; see also People v Burke, 170 AD2d 1021 [4th Dept 1991], lv denied 77 NY2d 959 [1991]). Such actions “could have had no other effect than to ‘arouse the emotions of the jurors and prejudice them against the defendant’” (McMillan, supra, 66 AD2d at 830 [citation omitted]). “Such conduct encourages the jurors to convict, not on the basis of guilt beyond a reasonable 16 doubt, but because they, as citizens, must do their duty and place ‘large scale dealers’, whose money supports other crimes, in jail” (id.). Even more prejudicial was the prosecutor’s repeated elicitation of inflammatory testimony, and argument during summations, that Mr. Kims was then (or had at one time been) a member of the Crips gang (Tr. 770-771, 819, 1133; P.A. 586-587, 635, 949). The testimony had no probative value on the question of possession that was at issue in this case, and was used only to bolster improperly the testimony of two of the prosecution’s informants that they were afraid of Mr. Kims. A prosecutor’s questions pertaining to gang membership are improper when there is no connection between gang membership and the alleged crimes (see People v Acevedo, supra, 84 AD3d at 1391; People v Stewart, supra, 92 AD2d at 229; compare People v Polk, 84 AD2d 943, 945 [4th Dept 1981]). “It can only be concluded that this testimony was deliberately elicited to prejudice defendant before the jury” and, coupled with the error by the court in admitting that testimony, Mr. Kims was denied a fair trial (People v Gadsden, 80 AD2d 508, 508 [1st Dept 1981]; see also People v Livingston, 128 AD2d 645 [2d Dept 1987]). Although the trial court’s erroneous Molineux rulings cannot excuse the prosecutorial misconduct, they do explain defense counsel’s failure to object to the prosecutor’s remarks in summation. As the District Attorney points out in her responding brief at page 25, it was “wholly understandable” for defense counsel 17 not to raise an objection during summation if he knew (based on the Molineux rulings) that any such objection would be overruled. It is similar to the reason why CPL 300.10 (4) requires that the court must inform the parties of the crimes to be charged “prior to the summations,” so that the attorneys can tailor their arguments to the crimes charged. If the summation is not tailored to the proof of the crimes charged, a defendant “may be deprived of a meaningful and effective summation” (People v Willis, 107 AD2d 1058, 1058 [4th Dept 1985]; see also People v Aruz, 253 AD2d 592 [1st Dept 1998]; People v Bacalocostantis, 111 AD2d 991 [3d Dept 1985]). The defense attorney properly based his closing arguments on the way that the case had proceeded throughout the trial. The District Attorney argues, however, that defense counsel’s failure to object to the prosecutor’s comments in summation constitutes a failure to preserve the issue of the propriety of those comments for appeal. The District Attorney cannot have it both ways: when the trial attorney tailored his summation to the evidence that the court had allowed (over the trial attorney’s repeated objections), he did not thereby fail to preserve the arguments that he had made against the admission of the evidence at trial, nor did he impliedly consent to the prosecutor’s use of the evidence during summation. In his main brief, Mr. Kims also argued that prosecutorial misconduct on summation alone can be reversible error, even when defense counsel does not 18 object to it, citing People v Fisher (18 NY3d 964 [2012]). The District Attorney responds that Fisher was an ineffective assistance of counsel case, and Mr. Kims has not made an argument of ineffective assistance of his trial counsel. The reasoning of Fisher, however, is consistent with other prosecutorial misconduct cases from this Court. In particular, this Court has held that, “[a]fter a certain point, … the cumulative effect of a prosecutor’s improper comments during summation may overwhelm a defendant’s right to a fair trial (People v Riback, 13 NY3d 416, 423 [2009], citing People v Calabria, 94 NY2d 519, 523 [2000]). The Appellate Divisions have held likewise (see e.g. People v Slishevsky, 97 AD3d 1148 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; People v Huntsman, 96 AD3d 1387 [4th Dept 2012], lv denied 20 NY3d 1099 [2013]; People v Wlasiuk, 32 AD3d 674, 675-676 [3d Dept 2006], lv dismissed 7 NY3d 871 [2006]; People v Gorghan, 13 AD3d 908, 911 [3d Dept 2004], appeal dismissed 4 NY3d 798 [2005]). 19 CONCLUSION For the reasons set forth above, Mr. Kims’ conviction must be reversed in its entirety, and the entire case sent back for a new trial. Dated: February 11, 2014 Respectfully submitted, _________________________ Mark C. Davison, Esq. Davison Law Office PLLC P.O. Box 652 Canandaigua, New York 14424