Submitted - October 3, 2019
Ira Schulman, Kew Gardens, NY, for appellant.
M. Ryan, Acting District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Ellen C. Abbot, and John F.
McGoldrick of counsel), for respondent.
REINALDO E. RIVERA, J.P. RUTH C. BALKIN SHERI S. ROMAN BETSY
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Joseph A. Zayas, J.), rendered January 13, 2014,
convicting him of criminal sexual act in the third degree
(two counts), sexual abuse in the third degree (three
counts), and endangering the welfare of a child, upon a jury
verdict, and imposing sentence.
that the judgment is reversed, as a matter of discretion in
the interest of justice, and the matter is remitted to the
Supreme Court, Queens County, for a new trial.
defendant was charged with attempted rape in the second
degree (two counts) and criminal sexual act in the third
degree (two counts), among other crimes. The complainant, the
defendant's stepdaughter, was between the ages of 12 and
14 when the offenses allegedly occurred. After a jury trial,
the defendant was acquitted of the attempted rape charges but
was found guilty of two counts of criminal sexual act in the
third degree, three counts of sexual abuse in the third
degree, and endangering the welfare of a child.
to the defendant's contention, he was not deprived of the
effective assistance of counsel under the New York
Constitution since, viewing defense counsel's performance
in totality, counsel provided meaningful representation
(see People v Benevento, 91 N.Y.2d 708, 712;
People v Baldi, 54 N.Y.2d 137, 146-147). Further,
the defendant was not deprived of the effective assistance of
counsel under the United States Constitution (see
Strickland v Washington, 466 U.S. 668).
defendant's contention that he was deprived of his due
process right to a fair trial by the admission of certain
bolstering testimony is unpreserved for appellate review
(see CPL 470.05), and, in any event, without
defendant contends that the admission into evidence of
photographs depicting the complainant's genitals and anus
was unduly prejudicial. Although his contention is
unpreserved for appellate review (see CPL
470.05), we nevertheless reach the issue in the exercise
of our interest of justice jurisdiction.
evidence should be excluded only if its sole purpose is to
arouse the emotions of the jury and to prejudice the
defendant" (People v Pobliner, 32 N.Y.2d 356,
370; see People v Wood, 79 N.Y.2d 958, 960). Here,
the complainant's pediatrician, who was called as a
witness by the prosecutor, testified that there were no
injuries to the complainant's genitals or anus, and that
she did not expect to see any injury based upon the
complainant's report. Nevertheless, the prosecutor then
asked the pediatrician to approach the jurors and display the
photographs to them. Under the circumstances of this case,
the photographs were irrelevant, and served no purpose other
than to inflame the emotions of the jury and to introduce
into the trial an impermissible sympathy factor (see
People v Donohue, 229 A.D.2d 396, 398; cf. People v
Skeen, 139 A.D.3d 1179, 1181-1182; People v
Flowers, 122 A.D.3d 1396, 1397-1398; People v
Clarke, 110 A.D.3d 1341, 1344). The error was then
compounded when the prosecutor argued in summation that the
complainant had to "get on a table and open up her legs
and have her genitals photographed to be shown to 15
strangers . . . What did she gain out of this? Nothing."
The improper admission of the photographs cannot be deemed
harmless under the circumstances of this case (see People
v Crimmins, 36 N.Y.2d 230).
there must be a new trial, we note that, although the issue
is unpreserved for appellate review, the prosecutor engaged
in multiple instances of improper conduct during summation
(see People v Robles, 174 A.D.3d 653, 654-655). For
instance, the prosecutor attempted to arouse the sympathies
of the jurors (see People v Flores, 165 A.D.3d 695,
697). Additionally, while discussing the character of the
defendant, who was a church pastor at the time of trial, the
prosecutor referenced the sexual abuse scandals involving the
Catholic Church and Orthodox Jewish communities. The
prosecutor also pointed out that during jury selection, a
prospective juror expressed that she did not feel comfortable
sitting on this case because of all the priests who have
gotten away with child abuse, and that another prospective
juror stated that a family member was raped by a member of
the clergy. "[I]n summing up to the jury, counsel must
stay within the four corners of the ...