Summary
In Moye, two witnesses provided conflicting testimony in connection with a re-enactment of the drug arrest purporting to illustrate the officer's vantage point from his observation post.
Summary of this case from People v. IrizarryOpinion
No. 24.
Argued January 15, 2009.
Decided February 19, 2009.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 8, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (John A. K. Bradley, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree, (2) vacated the judgment, and (3) remanded the matter for a new trial.
People v Moye, 52 AD3d 1, affirmed. prejudicial to defendant, and the trial court's limiting instruction failed to eliminate the prejudicial effect.
Robert M. Morgenthau, District Attorney, New York City ( Mark Dwyer of counsel), for appellant.
Anthony L. Ricco, New York City, and Steven Z. Legon for respondent.
Before: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
An attorney may not "mak[e] himself an unsworn witness" by "supporting his case by his own" or anyone else's "veracity and position" ( People v Lovello, 1 NY2d 436, 439). While we do not fault the prosecutor for remarks made at sidebar, in his summation he concededly became an unsworn witness by "vouching] for the witness with the most favorable testimony for the prosecution by reference to his own pretrial conduct and . . . credibility by virtue of his position in the District Attorney's office" ( People v Moye, 52 AD3d 1, 8 [1st Dept 2008]). We agree with the majority below that the prosecutor's vouching remarks in summation may not be excused as fair response to defense provocation. Further, they were prejudicial to defendant, and, in this case, the trial court's limiting instruction failed to eliminate the prejudicial effect.
Chief Judge LIPPMAN taking no part.
Order affirmed in a memorandum.