The People, etc., respondent, v Gregory Spann, appellant. v. << (2011)

Submitted-February 24, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered December 8, 2008, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

On a motion by a defendant to suppress physical evidence, “the People have the burden of going forward to show the legality of the police conduct in the first instance” (People v. Whitehurst, 25 N.Y.2d 389, 391;  see People v. Blinker, 80 AD3d 619;  People v. Hernandez, 40 AD3d 777, 778;  People v. Thomas, 291 A.D.2d 462, 463;  People v. Quinones, 61 A.D.2d 765).   The defendant, however, “bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him” (People v. Thomas, 291 A.D.2d at 463;  see People v. Berrios, 28 N.Y.2d 361, 367;  People v. Whitehurst, 25 N.Y.2d at 391).  “The credibility determinations of the Supreme Court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record” (People v. Smith, 77 AD3d 980, 981 [internal quotation marks omitted];  see People v. Prochilo, 41 N.Y.2d 759, 761;  People v. Blinker, 80 AD3d 619;  People v. Johnson, 79 AD3d 905;  People v. Castro, 73 AD3d 800, 800-801;  People v. Shackleford, 57 AD3d 578).

“Where a testifying officer claims to have seen that which common sense dictates could not have been seen, courts have repeatedly deemed this testimony patently tailored to meet constitutional objections” (People v. Lebron, 184 A.D.2d 784, 787;  see People v. Rutledge, 21 AD3d 1125, 1126;  People v. Lewis, 195 A.D.2d 523, 524).   Here, contrary to the defendant's contention, the arresting officer's testimony at the pretrial hearing that he observed, in plain view and without leaning into the car in question, the butt of a handgun protruding from beneath the driver's seat while he was squatting in the space created by the open front passenger-side door, was not incredible as a matter of law (see People v. James, 19 AD3d 617, 618;  People v. Burgess, 168 A.D.2d 685, 686;  People v. Kalish, 166 A.D.2d 610, 611;  People v. Burke, 146 A.D.2d 706, 706-707).   Moreover, the hearing testimony does not support the defendant's contention that the officer's testimony was a fabrication tailored to nullify constitutional objections (see People v. Glenn, 53 AD3d 622, 624-625;  People v. James, 19 AD3d at 618;  People v. Burgess, 168 A.D.2d at 686;  cf.  People v. Miret-Gonzalez, 159 A.D.2d 647, 649;  People v. Garafolo, 44 A.D.2d 86, 88).   Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the handgun.

However, the cumulative effect of the prosecutor's improper comments during summation requires a new trial.   While the defendant's claim regarding the comments made by the prosecutor during summation is partially unpreserved for appellate review, we nevertheless review it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a];  People v. Badine, 301 A.D.2d 178, 180;  Matter of Stagnar v. Stagnar, 98 A.D.2d 983, 984).

“[I]n summing up to the jury, [the prosecutor] must stay within ‘the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v. Bartolomeo, 126 A.D.2d 375, 390, quoting People v. Ashwal, 39 N.Y.2d 105, 109-110).   At trial, the arresting officer testified that he observed the defendant “sweating very profusely” and his heart beating rapidly during the traffic stop.   The defendant presented medical evidence to establish that his perspiration and rapid heart rate were the result of hypertension.   During summation, the prosecutor improperly commented on the defendant's medical evidence by repeatedly referring to it as a “distraction,” a “smokescreen,” and “smoke and mirrors,” while at the same time arguing in support of the People's case that the defendant's physical condition was evidence of consciousness of guilt (see People v. Pagan, 2 AD3d 879, 880;  People v. Ortiz, 125 A.D.2d 502, 503;  People v. Torres, 111 A.D.2d 885, 886-887;  cf.  People v. Galloway, 54 N.Y.2d 396, 399;  People v. Flores, 191 A.D.2d 306, 307).   The prosecutor also impermissibly shifted the burden of proof to the defendant by informing the jurors that if they did not find the defendant's testimony “reasonable,” they could not “form the basis of reasonable doubt” (see People v. Pagan, 2 AD3d at 880;  People v. Bull, 218 A.D.2d 663, 665;  People v. Bonaparte, 98 A.D.2d 778).   Finally, the evidence presented at trial established that the arresting officer recovered the handgun from beneath the “front seat” of the car.   As there was no evidence to establish that the handgun was found beneath the front passenger seat as opposed to the front driver's seat, the prosecutor misstated the evidence during summation when he told the jury on 14 occasions that the handgun had been found beneath the front passenger seat where the defendant was sitting (see People v. Brown, 256 A.D.2d 414, 416;  People v. Cotton, 242 A.D.2d 638, 638-639;  People v. Cobb, 104 A.D.2d 656, 657).

The cumulative effect of these improper comments deprived the defendant of a fair trial (see People v. Calabria, 94 N.Y.2d 519, 522;  People v. Brown, 26 AD3d 392, 393;  People v. Pagan, 2 AD3d at 880;  People v. Cotton, 242 A.D.2d at 638-639).

In light of our determination, the defendant's contention that it was improper for the prosecutor to argue that the defendant had the benefit of hearing the People's proof before testifying has been rendered academic.

RIVERA, J.P., DILLON, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court