PEOPLE v. MOYE (2009)

Court of Appeals of New York.

The PEOPLE of the State of New York, Appellant, v. Ronald MOYE, Respondent.

Decided: February 19, 2009

Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for appellant. Anthony L. Ricco, New York City, and Steven Z. Legon for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

An attorney may not “mak[e] himself an unsworn witness” by “supporting his case by his own” or anyone else's “veracity and position” (People v. Lovello, 1 N.Y.2d 436, 439, 154 N.Y.S.2d 8, 136 N.E.2d 483 [1956] ). While we do not fault the prosecutor for remarks made at sidebar, in his summation he concededly became an unsworn witness by “vouch[ing] for the witness with the most favorable testimony for the prosecution by reference to his own pretrial conduct and ․ credibility by virtue of his position in the District Attorney's office” (People v. Moye, 52 A.D.3d 1, 8, 857 N.Y.S.2d 126 [1st Dept.2008] ). We agree with the majority below that the prosecutor's vouching remarks in summation may not be excused as fair response to defense provocation. Further, they were prejudicial to defendant, and, in this case, the trial court's limiting instruction failed to eliminate the prejudicial effect.

Order affirmed in a memorandum.

Memorandum.

Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur; Chief Judge LIPPMAN taking no part.

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