
    [829 NYS2d 395]
    The People of the State of New York, Respondent, v Melvin Aguilar, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 2, 2006
    
      APPEARANCES OF COUNSEL
    
      Legal Aid Society, New York City (Laura R. Johnson and Paul Wiener of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Karen Swiger and Mary Jo L. Blanchard of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Judgment of conviction, rendered March 16, 2004, reversed, on the law, judgment vacated and matter remanded for a new trial.

We hold that the cumulative effect of the prosecutor’s improper and inflammatory remarks in summation served to deprive defendant of his right to a fair trial (see People v Calabria, 94 NY2d 519 [2000]). While a prosecutor has wide latitude “to comment upon every pertinent matter of fact bearing upon the questions the jury ha[s] to decide,” such latitude does not permit “an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all rhetorical devices at his command” (People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation marks omitted]). Here, the prosecutor’s summation contained a substantial number of improper remarks that cannot be considered fair responses to the defense summation nor isolated instances of misconduct. The prosecutor exceeded the bounds of legitimate advocacy when he persistently attempted to improperly shift the burden of proof by (1) stating that he had an “ethical obligation to proceed only against the defendants who are guilty”; (2) implying that defendant has an obligation to introduce evidence when he argued to the jury “don’t allow the defendant to come in here and shift the blame, he’s the one on trial”; and (3) commenting on defendant’s pretrial silence (see People v Collins, 12 AD3d 33, 38 [2004]). The prosecutor compounded these errors when he blatantly vouched for the credibility of his witnesses (see People v Bailey, 58 NY2d 272 [1983]), referred to matters not in evidence, and sought to “lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which had a decided tendency to prejudice the jury” against defendant (People v Ashwal, 39 NY2d at 110). For example, over objections which were overruled, the prosecutor argued that the police officers’ “job is to keep the street safe and to keep the community clean, and that’s what they did . . . [t]hey got a drunk driver off the road[,] an intoxicated driver before he did serious damage,” and then remarked, “this case is about the defendant putting all of our lives at risk, getting behind the wheel of a two ton truck.”

The People’s preservation arguments are unavailing since defense counsel specifically objected to over 30 comments and moved for a mistrial based upon the objections and the cumulative impact of the remarks.

Contrary to the People’s contention, corrective action in the form of a reversal and new trial is warranted despite what they describe as “the overwhelming evidence of defendant’s guilt.” While the People point to the police testimony indicating that defendant had vomit on his clothes, bloodshot eyes and smelled of alcohol, the record also reveals that on cross-examination, one of the officers conceded that in a videotape taken of defendant upon his arrival at the precinct, defendant’s clothing was not unkempt, he did not have bloodshot eyes and his speech was clear. The same officer further acknowledged that on the arrest report, he checked that defendant’s physical condition was “apparently normal,” and that on the incident forms, he did not check off that defendant had bloodshot eyes, or that he was staggering, unconscious or intoxicated. Defendant took the stand and did not dispute the accident, but rather explained to the jury that he had fallen asleep at the wheel. Inasmuch as the finding of guilt rested squarely on the jury’s assessment of credibility, we cannot say that the persistent pattern of inflammatory remarks did not substantially prejudice the defense. “[W]hile we may not be able to say with certainty that, absent the errors remarked, the verdict would have been one of acquittal, we may say with some assurance that the repeated improprieties had a decided tendency to blur the issue for decision and to prejudice the jury” (People v Carborano, 301 NY 39, 42 [1950]). Where a prosecuh ’s misconduct has operated to deny a defendant his “fundi mental right to a fair trial,” a reviewing court must reverse the conviction and grant a new trial, “quite without regard to any evaluation as to whether the errors contributed to defendant’s conviction” since “[t]he right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right” (People v Crimmins, 36 NY2d 230, 238 [1975]; see also People v Nevedo, 202 AD2d 183, 185-186 [1994] [reviewing court “constrained” to “reverse the conviction of a defendant who the evidence shows is almost certainly guilty of very serious and violent crimes” where the cumulative effect of the prosecutor’s summation errors denied the defendant a fair trial]).

Nor can we conclude that the trial court’s curative instructions were sufficient to ameliorate the prejudicial effect of the prosecutorial misconduct. “A court’s instruction to a jury to disregard matters improperly brought to [its] attention cannot ‘always assure elimination of the harm already occasioned’ ” (People v Calabria, 94 NY2d at 523, quoting People v Carborano, 301 NY at 42).

We find defendant’s arguments concerning the challenge for cause of a prospective juror to be without merit.

McKeon, P.J.

(dissenting). On September 26, 2002, at about 4:57 a.m., in the vicinity of East Fordham Road and Marion Avenue in the Bronx, New York City Police Captain Jeffrey Hart, who was serving as duty captain for four Bronx precincts, saw an SUV driven by defendant Melvin Aguilar mount a sidewalk, strike several parking meters and come to rest after colliding with the rolled down gate of a store at the location. At trial, Captain Hart testified that when he approached defendant, he found him unresponsive, with his eyes closed, vomit on his clothes and smelling of alcohol.

A police sector car was summoned. Police Officer Michael Mc-Cauliffe of the 46th Precinct responded within minutes. At trial, Officer McCauliffe described defendant as “passed out,” “completely unconscious” and staggering out of his car, with bloodshot eyes and slurred speech. Officer McCauliffe, according to his trial testimony, arrested defendant for driving while intoxicated. Officer McCauliffe corroborated the testimony of Captain Hart that defendant smelled of alcohol and there was vomit in the vehicle.

Defendant was taken to the 45th Precinct where, at about 6:00 a.m., he was offered the opportunity, by Police Officer John Lembke of the Intoxicated Driver Unit, to take a breath test. Defendant declined. Officer Lembke described defendant, in his testimony at trial, as having vomit on the front of his shirt. It was Officer Lembke’s opinion, as expressed during the trial, that defendant was intoxicated.

At trial, defendant testified that on September 25, 2002, from 8:30 a.m. to 6:30 p.m., he worked at his regular employment with RadioShack in Brooklyn. According to his trial testimony, upon completing his day’s work, he took a subway to Bay Ridge Brooklyn, where he visited with his cousin Nelson Borjaorja until about 11:00 p.m., when he took a train to the Bronx, arriving at about 1:00 a.m. at the home of his cousin Ronny Rodriguez, where defendant’s brother Mario Aguilar was staying.

At about 3:00 a.m., according to defendant’s testimony, he borrowed his cousin’s SUV and, together with his brother, went to a restaurant in Washington Heights, where he remained until about 4:15 a.m., when he left by himself to return to the Bronx. Defendant denied that he had been drinking alcohol. However, he did not dispute the happening of the accident, explaining to the jury that he had fallen asleep at the wheel, but had not passed out from alcohol-related reasons. Defendant admitted that he declined to take a breath test, a decision, he explained at trial, which was prompted by poor police treatment and one, with the passage of time, he has since come to regret. Defendant was the only defense witness; his relatives did not testify. The jury convicted him of driving while intoxicated and driving with ability impaired. The People concede — and I agree — that defendant’s conviction for driving while impaired should be dismissed as an inclusory concurrent count.

Against this factual backdrop, the majority concludes that defendant was deprived “of his right to a fair trial” because of the “prosecutor’s improper and inflammatory remarks in summation” (majority op at 2). Undeniably, the tone and tenor of the prosecutor’s closing argument, marked, as it was, by rhetorical excess, falls short of the prosecutor’s “mission,” so eloquently defined in People v Zimmer (51 NY2d 390, 393 [1980]), which “[i]s not so much to convict as it is to achieve a just result.”

It is quite understandable, therefore, that the People seek to explain some of the trial assistant’s inappropriate closing argument language by reference to his inexperience, as inartfully phrased remarks fueled by the emotions of the trial or as the human failing, shared by us all at one time or another, of having uttered words “better left unsaid.”

However, not all of the words spoken by the trial assistant in his summation were outside the bounds of legal propriety. Some of the prosecutor’s statements, while hardhitting, were responsive to arguments proffered by the defense, before a Bronx jury, which, inter alia, sought to blame the police for defendant’s decision not to take a breath test or, otherwise, put the police on trial. So, too, the prosecutorial remarks about defendant’s failure to call his relatives to confirm his sobriety do not constitute impermissible burden shifting. (People v Tankleff, 84 NY2d 992 [1994].)

And as can be gleaned from People v Ashwal (39 NY2d 105, 111 [1976]), cited with approval by the majority, the court acknowledged that the prejudicial effects of improper prosecutorial remarks in summation can be dissipated by a court “[p]romptly and clearly advising the jury that the comments were improper and must be completely disregarded” (citations omitted). That is what the court did here.

The majority relies on People v Calabria (94 NY2d 519 [2000]). But Calabria is more than an inflammatory summation case; there, the prosecutor, in addition to inappropriate summation rhetoric, disregarded pretrial rulings and “cumulatively denied defendant the right to a fair trial.” (Id. at 522.)

While it is true that some of the prosecutor’s words can rightly be described as intemperate, it is only when summation improprieties are so egregious, viewed within the entirety of the trial, that a deprivation of a fair trial argument by a defendant can be sustained. (People v D'Alessandro, 184 AD2d 114, 120 [1992], lv denied 81 NY2d 884 [1993].) The words of a prosecutor’s summation cannot be examined in a vacuum, rather it is only “[o]n consideration of the whole record” that a reviewing court can find that a defendant was deprived of a fair trial. (People v Arce, 42 NY2d 179, 191 [1977].)

The rule in this state is well settled: An error is prejudicial if “[an] appellate court concludes that there is a significant probability, rather than only a rational possibility . . . that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” (People v Crimmins, 36 NY2d 230, 242 [1975].)

The majority does not address the underlying facts of defendant’s conviction, or quantify the quantum of proof adduced at trial against him — it was overwhelming. And, its reliance on People v Bailey (58 NY2d 272, 278 [1983] [evidence “not overwhelming”]) and People v Collins (12 AD3d 33, 41 [2004] [evidence “hardly overwhelming”]) does not consider that each case, in the words of the authoring court, clearly represents a factual scenario where a defendant might well have been acquitted but for the inflammatory words of a prosecutor. Defendant’s conviction hardly fits that description.

In truth, the facts supporting his guilt “when perceived as a whole, overwhelmingly establishes guilt beyond a reasonable doubt, are inconsistent with his innocence and exclude to a moral certainty every other reasonable hypothesis” (People v Morgan, 66 NY2d 255, 256 [1985]).

There have been — and undoubtedly will be — cases where, due to the inflammatory words of a prosecutor, examined within the context of the prevailing facts, the standard of justice owed to a criminal defendant in this state will not be achieved. I agree with the majority that such instances cannot be condoned, or the injudicious words of a prosecutor pardoned. I disagree, however, that this is one of those cases.

Davis and Gangel-Jacob, JJ., concur; McKeon, P.J., dissents in a separate memorandum.  