ADA's Improper Remarks Prompt Order for New Trial

, New York Law Journal

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Justice Egan

ALBANY - An Albany County prosecutor who "strayed far beyond…well-defined parameters" in vouching for the credibility of his witnesses and who mocked the defense denied the defendant his constitutional right to a fair trial, a unanimous panel of the Appellate Division, Third Department, has held.

The court said that Assistant District Attorney Brian Conley's summation was so improper that Lukee Forbes is entitled to a new trial on assault and robbery charges. It was especially critical of Conley's suggestion that the jury, in order to believe Forbes, had to conclude that Albany County Judge Stephen Herrick (See Profile) as well as the district attorney's office were engaged in a conspiracy against the defendant.

Justice John Egan (See Profile), writing for the panel, said setting up a "credibility contest" on summation is "entirely permissible" and not usually prejudicial. But here, where Conley told the jury that the defendant's story made sense only if there was a widespread conspiracy against him by law enforcement officials and the judge, the prosecutor was way off base, Egan said.

"Simply put, the prosecutor's conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel's prompt objection and County Court's appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored," Egan wrote.

Egan said Conley's inappropriate remark about a conspiracy was among a litany of inappropriate comments uttered in his summation.

"Summations rarely are perfect," Egan wrote. "For that reason, we accord counsel a certain amount of leeway in this regard and recognize that not every improper comment made by the prosecuting attorney during the course of the closing argument warrants reversal of the underlying conviction."

Here, however, the court said that the "magnitude" of Conley's errors required reversal, notwithstanding the "ample evidence to support defendant's conviction."

People v. Forbes, 104771, began with a random attack on June 13, 2010 when three young men who had been drinking alcohol and smoking marijuana encountered a man walking home from a gay pride event. The victim was knocked unconscious with a tree limb and robbed. All three youths were charged with assault and robbery.

Forbes' two codefendants pleaded guilty and testified against him and he was convicted by a jury. Although Forbes was only 15-years-old at the time of the crime, Herrick declined to accord him youthful offender status and imposed a prison sentence of 3 1/3-to-10 years.

On appeal, Forbes raised a number of issues, arguing that the testimony of the codefendants was not sufficiently corroborated and complaining of Conley's summation. The court rejected the corroboration argument, but agreed with Forbes that the prosecutor's summation was improper.

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