People v. Casiano

Lynn W.L. Fahey, New York, N.Y. (Nao Terai and Ronald Zapata of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Jean M. Joyce of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered July 16, 2013, convicting him of assault in the second degree, assault in the third degree, and criminal mischief in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, count six of the indictment charging criminal mischief in the third degree is dismissed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the charges of assault in the second degree under count one of the indictment and assault in the third degree under count four of the indictment.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally insufficient to establish the defendant's guilt of criminal mischief in the third degree beyond a reasonable doubt (see People v. Powell, 101 A.D.3d 756, 757, 955 N.Y.S.2d 608 ; People v. Curry, 101 A.D.3d 743, 744, 959 N.Y.S.2d 495 ; People v. Deolall, 7 A.D.3d 635, 635, 777 N.Y.S.2d 173 ). The evidence was insufficient to establish, beyond a reasonable doubt, that the damage to the subject property exceeded the sum of $250 (see Penal Law § 145.05[2] ; People v. Curry, 101 A.D.3d at 744, 959 N.Y.S.2d 495 ). We therefore vacate that conviction and dismiss count six of the indictment.

The defendant correctly asserts that the cumulative effect of the prosecutor's of a past criminal charge he faced (see People v. Carter, 40 N.Y.2d 933, 934, 389 N.Y.S.2d 835, 358 N.E.2d 517 ; People v. Morgan, 111 A.D.3d 1254, 1256, 974 N.Y.S.2d 687 ). Further, the prosecutor denigrated the defense and undermined the defendant's right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a "saint" for answering so many questions (see generally People v. Brisco, 145 A.D.3d 1028, 45 N.Y.S.3d 474 ; People v. Baum, 54 A.D.3d 605, 606, 863 N.Y.S.2d 672 ). Moreover, the prosecutor improperly used the defendant's right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 (see People v. De George, 73 N.Y.2d 614, 618, 543 N.Y.S.2d 11, 541 N.E.2d 11 ). The cumulative effect of these improper comments deprived the defendant of a fair trial (see People v. Calabria, 94 N.Y.2d 519, 522, 706 N.Y.S.2d 691, 727 N.E.2d 1245 ; People v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Spann, 82 A.D.3d 1013, 1015, 918 N.Y.S.2d 588 ). To the extent that the defendant's challenges to some of the above remarks were not preserved for appellate review, we nevertheless reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ).

As a new trial must be ordered, we further note that the Supreme Court erred in admitting the recording of the second 911 call of a nontestifying witness under the present sense impression and excited utterance exceptions to the hearsay rule, and by unduly restricting the defendant's cross-examination of a complainant. The 911 call did not qualify as a present sense impression because the element of contemporaneity was not satisfied (see People v. Vasquez, 88 N.Y.2d 561, 575, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ; People v. Parchment, 92 A.D.3d 699, 938 N.Y.S.2d 174 ), and the People failed to demonstrate that the delay between the conclusion of the event and the beginning of the call was not sufficient to destroy the indicia of reliability upon which the present sense impression exception rests (see People v.

Furthermore, because we are reversing and ordering a new trial, we note that the Supreme Court, in fashioning its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), failed to appropriately balance the probative value of the defendant's prior crimes on the issue of his credibility and possible prejudice to the defendant if he were questioned about such crimes on cross-examination in the event he elected to take the stand (see People v. Kucmierowski, 103 A.D.3d 755, 755–756, 959 N.Y.S.2d 708 ).