People v. Firu

69 Misc.3d 1

129 N.Y.S.3d 619

The PEOPLE of the State of New York, Respondent,

v.Victor FIRU, Appellant.

2016-918 Q CR

Supreme Court, Appellate Term, New York.

Decided August 14, 2020

Appellate Advocates (Alice R. B. Cullina of counsel), for appellant.

Queens County District Attorney (John M. Castellano, Johnnette Traill, Ellen C. Abbot and Ayelet Sela of counsel), for respondent.

PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

Appeal from judgments of conviction of the Criminal Court of the City of New York, Queens County ( Stephanie L. Zaro, J.), rendered February 4, 2016. The judgments convicted defendant, upon jury verdicts, of assault in the third degree and harassment in the second degree, respectively, and imposed sentences.

ORDERED that the judgments of conviction are reversed, as a matter of discretion in the interest of justice and on the law, and the matter is remitted to the Criminal Court for a new trial.

Insofar as is relevant to this appeal, defendant was charged in separate accusatory instruments with assault in the third degree ( Penal Law § 120.00 [1] ) and harassment in the second degree ( Penal Law § 240.26 [1] ), respectively, for striking the complainant, his wife, causing her physical injuries and substantial pain. Following a jury trial, defendant was convicted of these charges and was sentenced to probation, and a five-year order of protection was issued.

The People's proof in this case rested almost entirely on the complainant's out-of-court statements. In a 911 call made from a grocery store at about 10:49 p.m., an unidentified man indicated that a woman had entered the grocery store on the corner of 40th Street and Queens Boulevard, and that she was bleeding and asking for help. Seven minutes later, a second 911 call was made, this time from the complainant. The complainant stated that she was in a store and bleeding, and that her husband became "very violent" and "beat [her] up so bad and [she] left the house." An emergency medical technician who arrived at the grocery store described the complainant as "crying... with multiple injuries...to the face and head," and testified that the complainant had told him that she had been attacked by her husband. More than a half hour later, at about 11:30 p.m., the responding officer arrived at the scene and saw the complainant bleeding from her face inside the ambulance. The officer testified that the complainant was speaking "hysterically" and said that her husband had punched her in the face.

Testifying for the defense were defendant Victor Firu and the complainant. Defendant and the complainant had been married since 1997 and moved to the United States from Romania with their son in 2006. Both testified that they had a discussion over defendant's excessive work hours when defendant slapped the complainant on her cheek. As the complainant ran out of the kitchen, she tripped and fell, sustaining injuries. Defendant tried to pick up the complainant from the floor, but she would not let him, and instead left the apartment. Defendant called a friend to come over to the apartment to watch his son so that he could look for his wife. The complainant went to a grocery store where someone handed her a phone and told her to speak to 911. She could not recall what she had said to the 911 operator. She denied telling anybody at the hospital that she had fallen to the floor to avoid defendant's punches, or that defendant had kicked her in the head. Although she admitted to providing a statement to the police that her husband had struck her in the face and back, she testified that she was tired and distraught when she signed the Domestic Incident Report (DIR) which contained the statement. She further testified that she had to read the DIR in English, which was not her primary language.

Following the jury trial, defendant was convicted of assault in the third degree and harassment in the second degree.

On appeal, defendant contends that he was denied a fair trial. While no single error in this case may be grounds for reversal, we are compelled to conclude that the cumulative effect of many errors over the course of the trial, both by the court and the prosecution, served to deprive defendant of a fair trial (see People v. Hudson , 104 A.D.2d 157, 483 N.Y.S.2d 215 [1984] ; People v. Murphy , 88 A.D.2d 1000, 451 N.Y.S.2d 838 [1982] ; People v. Goldstein , 196 Misc. 2d 741, 763 N.Y.S.2d 390 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2003] ). The most glaring of these errors was the prosecutor's unfounded, highly inflammatory accusation in her summation that defense counsel had colluded with the complainant and defendant to contrive a false account of what had happened.

A defendant's right to a fair and impartial trial before an unbiased jury is a cornerstone of our criminal jurisprudence (see People v. De Jesus , 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 369 N.E.2d 752 [1977] ). Such right is assured "in surroundings in which both the accused and the prosecution enjoy the unfettered attention of the jury, to the end that the resulting verdict will be the product solely of evidence adduced on the witness stand. Recognizing that juries are extremely likely to be impregnated by the environing atmosphere, criminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct ... and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining facts relevant to guilt or innocence" ( People v. De Jesus , 42 N.Y.2d at 523, 399 N.Y.S.2d 196, 369 N.E.2d 752 [internal quotation marks and citations omitted] ). Thus, summation is not an opportunity for a prosecutor to engage in an " ‘unbridled debate in which the restraints imposed at trial are cast aside’ " ( People v. Goldstein , 196 Misc. 2d at 743, 763 N.Y.S.2d 390, quoting People v. Ashwal , 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ). Such conduct not only compromises a defendant's right to a fair trial, but goes against a prosecutor's duty to ensure that "justice is done and the rights of all—defendants included—are safeguarded" ( People v. Lombard , 4 A.D.2d 666, 671, 168 N.Y.S.2d 419 [1957] ; see also People v. Bailey , 58 N.Y.2d 272, 276-277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 [1983] ; People v. Goldstein , 196 Misc. 2d at 743, 763 N.Y.S.2d 390 ).

In the case at bar, the prosecutor exceeded the bounds of permissible rhetorical comment by accusing defense counsel of coaching witnesses to fabricate a defense. Such comments are extremely prejudicial, especially where, as here, there are sharp issues of credibility among the witnesses (see People v. Gordon , 50 A.D.3d 821, 855 N.Y.S.2d 617 [2008] ). By impugning defense counsel's integrity, the prosecutor effectively misled the jury, sidetracking it from its responsibility to determine the facts (see People v. Calabria , 94 N.Y.2d 519, 523, 706 N.Y.S.2d 691, 727 N.E.2d 1245 [2000] ; People v. Robles , 174 A.D.3d 653, 655, 105 N.Y.S.3d 111 [2019] ; People v. McReynolds , 175 A.D.2d 31, 572 N.Y.S.2d 8 [1991] ). Although the court sustained counsel's objection to the comments and admonished the jurors that there was "no evidence that either attorney intended to [impugn] the other one's character," the court's instruction was insufficient to ameliorate the damage that had already been done. "A court's instructions to a jury to disregard matters improperly brought to their attention cannot ‘always assure elimination of the harm already occasioned’ " ( People v. Calabria , 94 N.Y.2d at 523, 706 N.Y.S.2d 691, 727 N.E.2d 1245, quoting People v. Carborano , 301 N.Y. 39, 42-43, 92 N.E.2d 871 [1950] ). This is especially so in this case, where the prosecutor's remarks were not isolated but accompanied by other errors during the course of the trial.

In addition to denigrating defense counsel, the prosecutor twice improperly commented on defendant's pretrial silence as evidence of guilt by remarking that when the police had arrived, defendant did not say what had happened and did not ask the police to look for his wife (see People v. DeGeorge , 73 N.Y.2d 614, 617-618, 543 N.Y.S.2d 11, 541 N.E.2d 11 [1989] ; People v. Casiano , 148 A.D.3d 1044, 1046, 50 N.Y.S.3d 439 [2017] ). The prosecutor also played back the complainant's 911 call to the jury, and read back her DIR statement during summation. However, neither of these statements should have been admitted at trial. Although defense counsel did not specifically object to the statements, we, nonetheless, review their admissibility on appeal in the interest of justice.

We find that the complainant's statements to the police, as well as those made in the 911 call, were hearsay statements that did not qualify as excited utterances. The excited utterance exception to the hearsay rule is a narrow one, reserved for those statements made under the stress of a startling event that is " ‘sufficiently powerful to render [the] normal reflective processes inoperative’ " ( People v. Cantave , 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257 [2013], quoting People v. Vasquez , 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ). "The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance" ( People v. Almonte , 33 N.Y.3d 1083, 1084, 106 N.Y.S.3d 277, 130 N.E.3d 873 [2019] [internal quotation marks omitted]; see also People v. Brown , 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987] ). Thus, statements that fall within the exception should generally be "made contemporaneously or immediately after a startling event which affected or was observed by the declarant" ( People v. Nieves , 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] ).

Here, although the responding officer described the complainant as...