This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant was convicted of various sex offenses and sentenced to prison terms aggregating to 20 years upon the testimony of two of his nieces, that while they were left by their mother in his care he on numerous occasions molested them. The alleged abuse was not, in the aftermath of its report, medically confirmed during the physical examinations to which the children were subjected, and defendant raised before the jury the question of whether the children had been put up to their accusations by their mother; there was evidence that the children were afraid of their mother because she was physically abusive and that she had a financial motive to prompt their allegations against defendant. Indeed, there was proof that the mother took advantage of defendant's arrest and pretrial incarceration to steal from him by cashing over forged endorsements government checks in substantial amounts payable to defendant and mailed to him at the mother's address.
Crucial to confirming the young children's accounts, was testimony elicited by the People from one Raymond Burse, a convicted murderer, who, while reincarcerated for and awaiting a hearing upon an alleged parole violation, claimed to have become privy to statements by defendant in which defendant described his sexual predation upon his nieces. Defendant urged that Burse obtained the information upon which his testimony was based not from him but from legal papers he had with him during his pretrial incarceration, to which Burse surreptitiously gained access. Defendant pointed out in this regard that, upon learning of the sex abuse charges against him, Burse communicated by letter directly with the trial prosecutor, whose name he would not likely have known except from defendant's paperwork. Defendant also contended that Burse was receiving a benefit in exchange for his testimony against him, the prosecutor having promised to write a letter on Burse's behalf to the Parole Board.
While the evidence of the charged abuse was sufficient, it was, even when viewed in the light most favorable to the People, far from overwhelming; the trial's outcome turned entirely on the jury's resolution of fairly pronounced witness credibility issues. Those issues should have been resolved by the jury dispassionately on the basis of the properly admitted evidence. The prosecutor's summation, however, directed the jury's attention elsewhere -- a circumstance that competent defense counsel should have sought to prevent.
"It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within the four corners of the evidence and avoid irrelevant comments which have no bearing on any legitimate issue in the case. Thus the District Attorney may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence. Above all he [or she] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant" (People v Ashwal, 39 NY2d 105, 109-110  [internal citations and quotation marks omitted]).
Here, the prosecutor improperly encouraged inferences of guilt based on facts not in evidence. Without record basis for referring to prior consistent statements by the complainants, no such statements having been admitted in evidence -- likely for the very good reason that there had been no claim of recent fabrication (see People v McClean, 69 NY2d 426, 428 ) --the prosecutor bolstered her young witnesses' credibility by describing in extended fashion the "long road" they had traveled in advance of their trial appearances in the course of which "they said the exact same thing over and over and over again" to the police, social workers, doctors and the Grand Jury. Continuing, the prosecutor, essentially testifying, improperly, advised the jury that it could view evidence of the complainants' contemporaneous misbehavior at school as proof that the crimes occurred.
Hazard of an improperly founded, erroneous conviction was further heightened by the prosecutor's less than frank minimization of the consideration Burse was to receive in exchange for his potentially pivotal testimony as to defendant's jailhouse admissions. While it was literally true that the prosecutor, as she asserted in her summation, was not the Parole Board and did not "control what happen[ed] to Ray [Burse]," the none too subtle suggestion that the prosecutor's letter to the Board on Burse's behalf was merely a courtesy and conferred no real benefit to be weighed in assessing Burse's credibility, was materially misleading; the prosecutor was plainly in a position, if not to control, at least to influence the outcome of Burse's parole violation hearing.
Finally, in her peroration, the prosecutor exhorted, "[t]he voice of a child is evidence, the testimony of two children is evidence. The day that the voice of a child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever." Obviously, it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice.
Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 ). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.
Aaron Richard Fisher