Opinion
2012-11-21
The PEOPLE, etc., respondent, v. Abdul MATTOCKS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel Goldberg, J.), rendered October 27, 2010, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish his guilt of manslaughterin the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the conviction of manslaughter in the second degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
However, although the following issues are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Heyward, 50 A.D.3d 699, 700, 854 N.Y.S.2d 545;People v. Osorio, 49 A.D.3d 562, 563–564, 855 N.Y.S.2d 163), upon the exercise of our interest of justice jurisdiction ( seeCPL 470.15[3][c]; People v. Broadwater, 116 A.D.2d 1022, 1022–1023, 498 N.Y.S.2d 638;see also People v. Engstrom, 86 A.D.3d 580, 581, 926 N.Y.S.2d 664;People v. Barker, 183 A.D.2d 835, 835, 584 N.Y.S.2d 79), we agree with the defendant that the prosecutor's improper impeachment of her own witness in violation of CPL 60.35 ( see People v. Fitzpatrick, 40 N.Y.2d 44, 51–53, 386 N.Y.S.2d 28, 351 N.E.2d 675;People v. Andre, 185 A.D.2d 276, 276–277, 585 N.Y.S.2d 792;People v. Comer, 146 A.D.2d 794, 794–795, 537 N.Y.S.2d 272;cf. People v. Faulkner, 220 A.D.2d 525, 526, 632 N.Y.S.2d 189;People v. Magee, 128 A.D.2d 811, 811, 513 N.Y.S.2d 514) and her improper use of such impeachment material during summation, together with related errors of the court with respect to the impeachment material, had the cumulative effect of depriving the defendant of his due process right to a fair trial ( see People v. Andre, 185 A.D.2d at 277–278, 585 N.Y.S.2d 792;see also People v. Engstrom, 86 A.D.3d at 581, 926 N.Y.S.2d 664). Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial.