Specifically, the prosecutor used language such as "conscious, blameworthy choices," "knowingly commit blameworthy acts," "took a risk that took [Rodriguez's] life," "you don't get to knowingly choose to do something wrong," "[y]ou don't get to drive over someone because you feel a mother's memorial is a nuisance," and, illogically, "[s]he failed to perceive that risk, and she chose to go ahead anyway " (emphasis added). The prosecutor continually denigrated the defense, referring to defense theories, repeatedly, as "excuses," and also as "garbage," and he falsely and provocatively claimed that the "defense repeatedly argued that the death of Kayla ... was an inconvenience and a nuisance" (seePeople v. Dawson, 178 A.D.3d 719, 721, 115 N.Y.S.3d 360 ; People v. Singh, 128 A.D.3d at 864, 9 N.Y.S.3d 324 ). The prosecutor continually evoked sympathy for Rodriguez using strong emotional terms, such as referring to her, and to her and Cuevas together, numerous times, as "the grieving mother" and the "grieving parents" and referring to Kayla repeatedly as Rodriguez's "murdered daughter" or "murdered teenage daughter" (seePeople v. Dawson, 178 A.D.3d at 721, 115 N.Y.S.3d 360 ; People v. McCray, 140 A.D.3d 794, 798, 32 N.Y.S.3d 316 ).
Specifically, the prosecutor used language such as" conscious, blameworthy choices,"" knowingly commit blameworthy acts," "took a risk that took [Rodriguez's] life," "you don't get to knowingly choose to do something wrong," "[y]ou don't get to drive over someone because you feel a mother's memorial is a nuisance," and, illogically, "[s]he failed to perceive that risk, and she chose to go ahead anyway" (emphasis added). The prosecutor continually denigrated the defense, referring to defense theories, repeatedly, as "excuses," and also as "garbage," and he falsely and provocatively claimed that the "defense repeatedly argued that the death of Kayla... was an inconvenience and a nuisance" (see People v Dawson, 178 A.D.3d 719, 721; People v Singh, 128 A.D.3d at 864). The prosecutor continually evoked sympathy for Rodriguez using strong emotional terms, such as referring to her, and to her and Cuevas together, numerous times, as "the grieving mother" and the "grieving parents" and referring to Kayla repeatedly as Rodriguez's "murdered daughter" or "murdered teenage daughter" (see People v Dawson, 178 A.D.3d at 721; People v McCray, 140 A.D.3d 794, 798).
B. Prosecutor's Appeal to Emotion While a prosecutor on summation is afforded "the widest latitude by way of comment, denunciation or appeal in advocating his [or her] cause[,] summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command," and "[t]here are certain well-defined limits" (People v Ashwal, 39 N.Y.2d 105, 109 [citation and internal quotation marks omitted]; see People v Dawson, 178 A.D.3d 719, 720). "'Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused'" (People v Cantoni, 140 A.D.3d at 787, quoting People v Singh, 128 A.D.3d 860, 863 [internal quotation marks omitted]).
B. Prosecutor's Appeal to Emotion While a prosecutor on summation is afforded "the widest latitude by way of comment, denunciation or appeal in advocating his [or her] cause[,] summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command," and "[t]here are certain well-defined limits" ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [citation and internal quotation marks omitted]; seePeople v. Dawson, 178 A.D.3d 719, 720, 115 N.Y.S.3d 360 ). " ‘Among other things, [the prosecutor] must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused’ " ( People v. Cantoni, 140 A.D.3d at 787, 34 N.Y.S.3d 454, quoting People v. Singh, 128 A.D.3d 860, 863, 9 N.Y.S.3d 324 [internal quotation marks omitted]).
However, since a new trial is required, we take this opportunity to remind the People that "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command" ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), but rather, "[t]here are certain well-defined limits" ( id. at 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ). Among other things, "a prosecutor should avoid inflammatory, disparaging comments that might prejudice the jury against the defendant, and should refrain from vouching for the credibility of the People's witnesses or bolstering those witnesses’ testimony" ( People v. Dawson, 178 A.D.3d 719, 720–721, 115 N.Y.S.3d 360, citingPeople v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ). " ‘A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct’ "
However, since a new trial is required, we take this opportunity to remind the People that "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command" (People v Ashwal, 39 N.Y.2d 105, 109), but rather, "[t]here are certain well-defined limits" (id. at 109). Among other things, "a prosecutor should avoid inflammatory, disparaging comments that might prejudice the jury against the defendant, and should refrain from vouching for the credibility of the People's witnesses or bolstering those witnesses' testimony" (People v Dawson, 178 A.D.3d 719, 720-721, citing People v Ashwal, 39 N.Y.2d at 109-110). "'A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct'" (People v Dawson, 178 A.D.3d at 721, quoting People v Singh, 128 A.D.3d 860, 863).
However, since a new trial is required, we take this opportunity to remind the People that "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command" (People v Ashwal, 39 N.Y.2d 105, 109), but rather, "[t]here are certain well-defined limits" (id. at 109). Among other things, "a prosecutor should avoid inflammatory, disparaging comments that might prejudice the jury against the defendant, and should refrain from vouching for the credibility of the People's witnesses or bolstering those witnesses' testimony" (People v Dawson, 178 A.D.3d 719, 720-721, citing People v Ashwal, 39 N.Y.2d at 109-110). "'A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct'" (People v Dawson, 178 A.D.3d at 721, quoting People v Singh, 128 A.D.3d 860, 863).
At trial, it was established that “the defendant swung a knife at the complainant, causing a number of lacerations, including a 12-centimeter laceration on the complainant's neck.” People v. Dawson, 178 A.D.3d 719, 719 (2d Dept 2019). On December 4, 2019, the New York Appellate Division, Second Department, vacated Plaintiff's conviction, finding that “the prosecutor repeatedly engaged in improper conduct” such that Plaintiff had been “deprived [of his right to] a fair trial.”
ORDERED that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress certain statements he made to law enforcement officials is granted, and the matter is remitted to the Supreme Court, Queens County, for a new trial. [1] The defendant’s contention that his conviction was not based upon legally sufficient evidence is largely unpreserved for appellate review (seeCPL 470.05[2]; Peoplev. Dawson, 178 A.D.3d 719, 720, 115 N.Y.S.3d 360; Peoplev. Williams, 171 A.D.3d 1223, 1224, 98 N.Y.S.3d 631). In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was, legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (seePeoplev. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).
The defendant's contention that his conviction was not based upon legally sufficient evidence is largely unpreserved for appellate review (see CPL 470.05[2]; People v Dawson, 178 A.D.3d 719, 720; People v Williams, 171 A.D.3d 1223, 1224). In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Contes, 60 N.Y.2d 620).