PEOPLE v. ALMETHOKY (2004)

Defendant appeals from a judgment convicting him upon a jury verdict of four counts of rape in the third degree (Penal Law § 130.25[2] ) and one count each of criminal possession of a weapon in the third degree (§ 265.02 [1] ) and endangering the welfare of a child (§ 260.10[1] ).   We conclude that the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) and that Miranda warnings were adequately communicated to defendant.   However, as the People correctly concede, reversal is required based on prosecutorial misconduct during summation (see generally People v. Mott, 94 A.D.2d 415, 421-422, 465 N.Y.S.2d 307).   The prosecutor's comments on summation were irrelevant and inflammatory (see People v. Downing, 112 A.D.2d 24, 25, 490 N.Y.S.2d 403) and “had ‘a decided tendency to prejudice the jury’ ” (People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281, quoting People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: