PEOPLE v. MOULTON (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered July 23, 2015, convicting him of rape in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

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

The defendant was charged with committing sexual offenses against his girlfriend's eight-year-old granddaughter.  After a jury trial, the defendant was convicted of rape in the first degree and endangering the welfare of a child.

Contrary to the defendant's contention, the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5]; People v. Romero, 7 N.Y.3d 633, 640–641, 826 N.Y.S.2d 163, 859 N.E.2d 902; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

The defendant received effective assistance of counsel under the state and federal standards (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Brown, 135 A.D.3d 870, 871, 24 N.Y.S.3d 154; People v. Koki, 74 A.D.3d 987, 902 N.Y.S.2d 188).

The defendant's contention that the prosecutor violated the unsworn witness rule during her cross-examination of a witness is unpreserved for appellate review (see CPL 470.05[2]; People v. Tevaha, 84 N.Y.2d 879, 880–881, 620 N.Y.S.2d 786, 644 N.E.2d 1342; People v. Tapper, 64 A.D.3d 620, 621, 883 N.Y.S.2d 250).  However, reversal of the judgment is warranted as a matter of discretion in the interest of justice (see People v. Brown, 30 A.D.3d 609, 610, 817 N.Y.S.2d 139; People v. Ramashwar, 299 A.D.2d 496, 497, 749 N.Y.S.2d 886).  The prosecutor repeatedly injected her own credibility into the trial while cross-examining the complainant's grandmother, who was the sole witness for the defense other than the defendant, about pretrial out-of-court statements the grandmother made to the prosecutor concerning the complainant's outcry (see People v. Paperno, 54 N.Y.2d 294, 300–301, 445 N.Y.S.2d 119, 429 N.E.2d 797).  Given the importance of the grandmother's testimony to the defense, this conduct deprived the defendant of his right to a fair trial (see People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273; People v. Brown, 30 A.D.3d at 610, 817 N.Y.S.2d 139; People v. Ramashwar, 299 A.D.2d at 497, 749 N.Y.S.2d 886).  Accordingly, we must remit the matter to the Supreme Court, Queens County, for a new trial (see CPL 470.20[1] ).

In light of our determination, the defendant's remaining contention need not be reached.

BALKIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.