Alexander Donn, for appellant.
M. Joyce, for respondent.
DiFIORE, Chief Judge
maintains that he was deprived of a fair trial by the
People's PowerPoint presentation, particularly insofar as
it displayed slides that contained annotated images of trial
exhibits. We conclude that, here, where the trial court, in
the exercise of its discretion, took prompt corrective action
to ensure that the jury was not being misled and gave strong
instructions concerning summation, defendant was not deprived
of a fair trial.
after midnight on December 20, 2009, several men broke into
the victim's apartment. The victim, who knew defendant
from the neighborhood, recognized defendant as one of the
intruders who attacked him. Defendant shot the victim, cut
him with a knife and poured bleach over his head. The victim
testified at trial that he had been on the telephone with his
brother when the men burst into his apartment.
trial, the People introduced surveillance footage of the
street and sidewalk where the victim lived from cameras
located on the building neighboring the victim's
apartment, as well as still photographs from that footage.
The exhibits were authenticated by the custodian of the
cameras on the neighboring building. It was snowing heavily
at the time of the offense and the video depicts six
individuals in hooded clothing walking along the sidewalk
through the snow. At one point, the video shows an SUV
driving down the block. After the SUV proceeded through the
traffic light at the corner, the six individuals can be seen
running into what appears to be the victim's building. A
short time later, the camera shows the individuals exiting
the building and running away.
victim's brother testified at trial. During his
testimony, the prosecutor displayed still photos of the
surveillance video - in particular, of the SUV that drove
down the block near the time of the crime. The victim's
brother agreed that he had been driving down the same block
on the night of the blizzard around the time of the offense
and that he had been speaking with the victim on the phone
when he was attacked. The victim's brother further agreed
that the truck he drove at that time "looked like"
the one in the still shot, but testified that he was unable
to definitively identify the vehicle as his.
victim's brother also testified that, when he was driving
down the block, he saw a few people wearing hooded clothing
walking on the sidewalk. One of the individuals was short in
stature and the victim's brother testified that he
thought he recognized that person as defendant - "[t]he
only short person I know." Indeed, he greeted the man,
saying "what up, " and the man responded with a
wave. The victim's brother admitted that he did not see
defendant's face, because it was dark outside and there
was a blizzard going on, but testified that he "thought
it was him."
trial court, immediately before closing arguments, gave the
jury detailed preliminary instructions, telling them that
they alone were the finders of fact, that what the lawyers
say in summation was "simply argument submitted for your
consideration, " that nothing the lawyers say in
summation was evidence and that the jury's recollection
of the evidence controlled, regardless of what the attorneys
summation, the prosecutor displayed a PowerPoint presentation
containing slides of images of the trial exhibits, some of
which had been annotated through the PowerPoint program with
text, circles or arrows. Significantly, the prosecutor
displayed slides depicting the still photographs from the
surveillance video that he had showed the victim's
brother, which had been annotated with captions such as,
"[the victim's brother's t]ruck" and
"[the victim's brother] sees Defendant, "
despite the witness's inability to make those definitive
identifications in his trial testimony. Defense counsel
raised objections at various points, several of which were
sustained. In addition, the trial court voiced its own
concerns, at one point telling the jury to disregard the
prosecutor's annotations to the images of the trial
exhibits. The court ultimately curtailed the PowerPoint
presentation because of those annotations, stating that it
was "not allowing any more... superimposed words."
summations, defense counsel moved for a mistrial, arguing
that there had been improper comment in several areas.
Although the court indicated that it was
"sympathetic" to certain of defendant's
arguments, it denied the mistrial. When the court asked
whether defendant "want[ed] anything short of a
mistrial, " counsel declined. Defendant was convicted of
burglary in the first degree, assault in the second degree
and criminal possession of a weapon in the second degree. The
jury acquitted him of robbery in the first, second and third
Appellate Division affirmed, holding that, to the extent
defendant's arguments were preserved, he was not deprived
of a fair trial by either the PowerPoint presentation or the
prosecutor's summation (123 A.D.3d 1152');">123 A.D.3d 1152 [2d Dept 2014]).
The Court also rejected defendant's ineffective
assistance of counsel claim. A Judge of this Court granted
defendant leave to appeal (25 N.Y.3d 1173');">25 N.Y.3d 1173 ), and we now
well-settled that attorneys are entitled to broad latitude in
commenting on pertinent matters of fact in summation, so long
as they limit themselves to relevant matters within the four
corners of the evidence (see People v Ashwal, 39
N.Y.2d 105, 109 ). "[T]he 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"
(Ashwal, 39 N.Y.2d at 109-110 [citations omitted]).
When determining whether improper statements deprived a
defendant of a fair trial, we have considered it to be of
"vital significance whether the trial court... 'gave
standing to the statement of the District Attorney as
legitimate argument'" or whether the court took
prompt corrective action, such as issuing a curative
instruction (People v Broady, 5 N.Y.2d 500, 516
 [citation omitted]).
is no inherent problem with the use of a PowerPoint
presentation as a visual aid in connection with closing
arguments. Indeed, it can be an effective tool. But, the
long-standing rules governing the bounds of proper conduct in
summation apply equally to a PowerPoint presentation. In
other words, if it would be improper to make a particular
statement, it would likewise be improper to display it
(see People v Anderson, __ N.Y.3d __ [decided
today]). If counsel is going to superimpose commentary to
images of trial exhibits, the annotations must, without
question, accurately represent the trial evidence (see
e.g. People v Santiago, 22 N.Y.3d 740, 751 ).
Moreover, any type of blatant appeal ...