THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RICHARD EPOLITO DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RICHARD EPOLITO, DEFENDANT–APPELLANT.

KA 09–01022

Decided: December 21, 2012

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. RICHARD EPOLITO, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C. AZZARELLI OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted.

Memorandum:  On appeal from a judgment convicting him, upon a jury verdict, of robbery in the second degree (Penal Law § 160.10[2][a] ), defendant contends in his main and pro se supplemental briefs that he was deprived of a fair trial based on, inter alia, prosecutorial misconduct on summation.   Although that contention is not preserved for our review (see CPL 470.05[2] ), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   During summation, the prosecutor improperly vouched for the credibility of prosecution witnesses (see People v. Lyon, 77 AD3d 1338, 1139, lv denied 15 NY3d 954;  People v. Tolbert, 198 A.D.2d 132, 133, lv denied 83 N.Y.2d 811).   We reject the People's contention that the prosecutor's comments during summation were a proper response to the summation of defense counsel (cf.  People v. Halm, 81 N.Y.2d 819, 821).   We therefore agree with defendant that the cumulative effect of the prosecutor's improper comments during summation deprived defendant of his right to a fair trial, requiring reversal (see People v. Pagan, 2 AD3d 879, 880).

Defendant further contends in his main brief that Supreme Court erred in denying his motion to suppress the testimony related to his identification on the ground that the photo array was unduly suggestive.   We reject that contention.   Although defendant's photo was the only one in the array showing a man with “salt-and-pepper” hair, the other photos showed men who appear to be of the same race and who had facial characteristics that were similar to those of defendant (see People v. Corchado, 299 A.D.2d 843, 844, lv denied 99 N.Y.2d 851).   Defendant's contention in his main brief with respect to the jury instruction is not preserved for our review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

In light of our decision to grant a new trial, we do not address defendant's remaining contentions in his main and pro se supplemental briefs.

Frances E. Cafarell

Clerk of the Court