Sober's suit does hint at "sour grapes" but considering certain Appellate Division decisions, the claim should not be dismissed out of hand. Consider what the Appellate Division said in People v. Levandowski:
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v THOMAS M. LEVANDOWSKI, Appellant.8 AD3d 898
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
THE An expression by a prosecuting attorney as to a personal opinion concerning a witness's credibility is patently improper.
Peter A. Lynch, Albany, for appellant.
Patricia A. De Angelis, District Attorney, Troy (Bruce E. Knoll of counsel), for respondent.
Before: Cardona, P.J., Mercure, Crew III, Peters and Kane, JJ. Mercure, Peters and Kane, JJ., concur; Cardona, P.J., not taking part.
OPINIONBY: Crew III OPINION: MEMORANDUM AND ORDER
...Defendant next contends that Supreme Court erred in failing to dismiss the indictment on the grounds that the integrity of the grand jury proceeding was impaired by prosecutorial misconduct and the evidence was legally insufficient. While there can be no doubt that the prosecutor made numerous errors during the grand jury presentation, we do not believe that they rose to the level necessary to find that the proceeding was legally impaired or that there was a possibility that defendant was prejudiced thereby.
Of the various remaining arguments raised by defendant, only one necessitates extended comment. Defendant contends that the prosecutor's misconduct during the course of the trial was so pervasive as to deprive defendant of a fair trial. We agree and, for that reason, reverse and order a new trial.Prior to trial, defense counsel made a motion in limine seeking to prevent evidence of prior consistent statements of the victim to bolster her in-court testimony, which motion was granted. Nevertheless, the prosecutor, on three different occasions, sought to elicit just such testimony over the objection of defense counsel, which objections were sustained.During cross-examination of the victim's mother, a key defense witness, she testified that she never told her daughter to lie about anything, to which the prosecutor responded, "the grand jury thought otherwise, didn't they?" Supreme Court sustained counsel's objection and, in the absence of the jury, severely reprimanded the prosecutor for pursuing such a line of questioning.
Then, during the course of summation, the prosecutor, again referring to the victim's mother, referenced her taking the stand and gazing lovingly across the courtroom towards defendant and exclaimed sarcastically, "It looked like they were a couple of newlyweds. I wanted to puke."
In both of the foregoing situations, it is clear that the prosecutor was improperly impuning the credibility of the witness and, with regard to the latter, was expressing a personal opinion concerning the mother's credibility, which is patently improper.During summation, the prosecutor improperly stated that defendant had failed to prove the victim's motive to lie, thereby suggesting that defendant bore the burden of proof in that regard. Counsel objected and Supreme Court pointedly instructed the jury that defendant bore no burden to prove anything in the case.
Also, during summation, the victim, her friends and, apparently, members of the prosecutor's staff sat together in the courtroom wearing ribbons of support and, upon objection of defense counsel, were directed to remove them. Wearing the ribbons in the presence of the jury clearly was meant to convey support for the victim, belief in her version of events and, by implication, disbelief in defendant's. Such conduct, to the extent that it may have influenced the jury, clearly impaired defendant's right to a fair trial.
Finally, during summation the prosecutor commented on an unflattering remark made by the victim regarding defense counsel stating, "she called [counsel] a bastard under her breath. I don't know if you heard that, but she was going after him." First, there is no record evidence of the victim having made such a remark. Second, if made, the comment was wholly irrelevant to the issues and reference to it was denigrating or disparaging of counsel and, by extension, of defendant.While it is true that, in almost all instances, the noted errors were subject to objections, which were sustained by Supreme Court, and, in certain instances, curative instructions were given, we need note only that such rulings and instructions cannot always assure elimination of the harm caused. To be sure, each of the cited instances of misconduct, standing alone, might not justify reversal, but given the fact that defendant's credibility was central to his defense, physical evidence of criminality was lacking and the People's expert testimony was of questionable value, the cumulative effect of such conduct clearly prejudiced defendant's right to a fair trial, and we therefore are constrained to order a new trial.
This display of inappropriate, unethical and indeed, incompetent behavior was not limited to the Levandowski matter.
In People v Gorghan 787 NYS2d 178 (2004), the defendant's conviction for 1st Degree Rape, Sexual Assault and Sodomy was reversed and a new trial ordered. The reason? The prosecutor's errors permeated the opening statement, the entering of proof and summation to such an extent that a new trial was warranted.
Dangerous individuals are being allowed a second trial because the District Attorneys Office is engaging in misconduct. These are two examples. How many don't the people Rensselaer County know about? How many bites at the apple will sexual predators get because prosecutors seem unable to follow the rules? Don't the people of Rensselaer County deserve a District Attorneys Office that can follow the rules and get convictions the first time?
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