Summary
calling attention to the impropriety of the prosecutor in suggesting that defendant fabricated his testimony after having advantage of hearing proof against him
Summary of this case from Mendoza v. StateOpinion
July 12, 1996
Appeal from the Livingston County Court, Cicoria, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: "The shackling of a defendant in the presence of the jury is inherently prejudicial and constitutes reversible error unless a reasonable basis therefor is in the record or it is clear that the jury was not prejudiced thereby" ( People v Vigliotti, 203 A.D.2d 898; see, People v. Rouse, 79 N.Y.2d 934, 935; People v. Sykes, 224 A.D.2d 986). Here, County Court did not articulate a reasonable basis for the shackling of defendant and the prejudice to defendant is apparent from the record. The court took no steps to minimize the jury's view of the leg shackles ( cf., People v. Houk, 222 A.D.2d 1074) and their use was highlighted by a witness who identified defendant in court as the individual wearing a "[b]lue shirt and tie and ankle cuffs." Further, in its instruction to the jury, the court stated that, although defendant presented no security risk, it was the court's policy to shackle all defendants who failed to make bail. Inasmuch as we are granting a new trial, we call attention to the impropriety of the prosecutor in suggesting that defendant fabricated his testimony after having had the advantage of hearing the People's proof ( see, People v. Smith, 192 A.D.2d 806, 808, lv denied 81 N.Y.2d 1080; People v. Jackson, 143 A.D.2d 363); in beginning his cross-examination of defendant by addressing the fact that he had been incarcerated since his arrest; in asking defendant to characterize a prosecution witness as a liar and whether any other witnesses had a reason to lie ( see, People v Paul, 212 A.D.2d 1020, 1021, lv denied 85 N.Y.2d 912; People v Parks, 120 A.D.2d 920, 921, lv denied 67 N.Y.2d 1055); in stating on summation that defendant had a reason to fabricate testimony because he was on trial ( see, People v. Hudson, 104 A.D.2d 157, 158); in making insulting references to defendant's character and in denigrating the defense as an attempt to "dance" and "block the view of the jury to the evidence"; and in vouching for the credibility of his witnesses ( see, People v. LaDolce, 196 A.D.2d 49, 57; People v. Clark, 195 A.D.2d 988, 990). There were other improprieties as well. It would seem, by now, unnecessary to emphasize again that the duty of the prosecutor is to honor established legal principles, not to secure a conviction by any and all means ( see, People v. Payne, 187 A.D.2d 245; People v Mott, 94 A.D.2d 415).
Finally, defendant's plea of guilty to a violation of probation must be vacated because the violation is predicated upon the conviction that we are reversing and because defendant pleaded guilty with the understanding that the sentence would be concurrent with the sentence imposed on the conviction being reversed ( see, People v. Santana, 163 A.D.2d 495, 497, affd on other grounds 78 N.Y.2d 1027; see also, People v. Fuggazzatto, 62 N.Y.2d 862; People v. Walker, 210 A.D.2d 1002).