THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JEROME THOMPSON DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ).   Contrary to the contention of defendant, we conclude that there was a reasonable basis articulated on the record to justify County Court's determination to have him handcuffed when he testified before the grand jury (see People v. Rouse, 79 N.Y.2d 934, 935;  People v. Jacobs, 298 A.D.2d 954, 955, lv denied 99 N.Y.2d 559).   Defendant's contention that he was denied a fair trial based upon prosecutorial misconduct on summation is not preserved for our review (see CPL 470.05[2];  People v. Ross, 118 AD3d 1413, 1416–1417, lv denied 24 NY3d 964) and, in any event, is without merit.   We agree with defendant that the prosecutor acted improperly by eliciting testimony from defendant on cross-examination that several of the People's witnesses were mistaken (see People v. Railey, 214 A.D.2d 455, 455, lv denied 86 N.Y.2d 800;  People v. Roundtree, 190 A.D.2d 879, 880), calling a rebuttal witness to impeach defendant's credibility with respect to a collateral matter (see People v. Pavao, 59 N.Y.2d 282, 288–289;  People v. Burns, 122 AD3d 1435, 1436), and injecting his own credibility into the trial (see People v. Paperno, 54 N.Y.2d 294, 300).   We conclude, however, that those improprieties were “not so egregious as to deprive defendant of his right to a fair trial, when viewed in the totality of the circumstances of this case” (People v. Martina, 48 AD3d 1271, 1273, lv denied 10 NY3d 961 [internal quotation marks omitted];  see People v. Gonzalez, 206 A.D.2d 946, 947, lv denied 84 N.Y.2d 867).   Indeed, the improper conduct merely highlighted defendant's claim that the incident never occurred and that the entire case against him was fabricated.

Finally, the sentence, although the statutory maximum, is not unduly harsh or severe, particularly in view of defendant's lengthy criminal history and disciplinary record while incarcerated.

Frances E. Cafarell

Clerk of the Court