Panel Faults ADA, Defense in Reversing Conviction

, New York Law Journal

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Eregious comments in a Brooklyn prosecutor's summation, and a defense attorney's elicitation of inadmissible and prejudicial testimony, prompted a unanimous appellate court to overturn the conviction of man serving a 25-year sentence for molesting three children.

The Appellate Division, Second Department, said that even though there was sufficient evidence to convict Naasir Mehmood of various felonies involving the 5-, 11- and 12-year-old children of his paramour, the verdict cannot stand because of the misconduct of an assistant district attorney and the ineffectiveness of a Brooklyn defense lawyer.

In People v. Mehmood, 2009-05401, the court said Brooklyn Assistant District Attorney Ilana Roberts' "improper comments during summation requires a new trial." But it also said errors by defense counsel Mustapha Ndanusa of Brooklyn provided separate grounds for reversal.

The case involved a defendant who was accused of committing several sex offenses and convicted before Brooklyn Supreme Court Justice John Ingram (See Profile) of first and second-degree course of sexual conduct against a child, second-degree criminal sexual act and two counts of endangering the welfare of a child.

At trial, Mehmood testified that he had cooperated with authorities in drug cases against the children's mother, thus giving her a motivation to fabricate allegations against him.

During summation, according to the Second Department, Roberts: "inaccurately" stated that the defendant needed "a clarification about which child's vagina he did or did not touch"; made an "irrelevant and inflammatory argument" to persuade the jury that the defendant had abused the children at times other than those alleged in the indictment; "impugned the defendant's right to testify" by suggesting he lied on the witness stand and "said what he thought he had to to save himself"; and "impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer."

Although the issue of prosecutorial misconduct was not preserved, the Second Department reached it under its interest of justice jurisdiction.

"The cumulative effect of the prosecutor's improper comments during summation requires a new trial," the court said in an opinion shared by justices Reinaldo Rivera (See Profile), Daniel Angiolillo (See Profile), L. Priscilla Hall (See Profile) and Jeffrey Cohen (See Profile).

Additionally, the court said, Ndanusa erred in cross examining the prosecution's witness on child sexual abuse accommodation syndrome. The witness testified that the veracity of a child's sexual abuse allegation could be analyzed by considering whether the comment is age-appropriate and specific.

"Despite the fact that this testimony was inadmissible, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony," the panel said. "Defense counsel was also deficient in failing to object to the prosecutor's improper remarks during summation."

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