scales of justice in an empty courtroom

An upstate appellate panel criticized a prosecutor’s “pervasive misconduct” during closing arguments as it overturned a burglary conviction on other grounds.

“The prosecutor inappropriately and repeatedly vouched for the credibility of prosecution witnesses, suggested that the defendant was a liar, characterized the defendant’s testimony as ‘smoke and mirrors’, and otherwise improperly denigrated the defense,” the Appellate Division, Fourth Department, said in People v. Walker, 515/14.

The Walker decision is among several appellate rulings in recent months in which courts have admonished prosecutors from various counties to watch their step.

The Onondaga County case involved Jerel Walker, who was convicted of second-degree burglary, fourth-degree grand larceny, petit larceny and fifth-degree criminal possession of stolen property.

In a memorandum, the court said the evidence before Onondaga County Judge Joseph Fahey (See Profile) was legally insufficient to support the grand larceny counts. In one count, the prosecution failed to prove that the value of the stolen property was more than $1,000. And in another count, the prosecution did not prove that Walker stole a debit card.

Additionally, the panel said, Fahey erred in permitting the prosecution to introduce evidence of an uncharged burglary to prove Walker perpetrated the charged crime.

“The instant crime is not so unique as to allow admission of the modus operandi,” the panel wrote. “The court also erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court.”

In light of its decision, the court said there was no need to address Walker’s allegation of prosecutorial misconduct. Regardless, the Fourth Department “note[d] our disapproval of” Assistant District Attorney Laura Fiorenza’s “pervasive misconduct during summation.”

The Fourth Department’s rebuke follows several other appellate court rulings over the past year in which panels have warned prosecutors to tone down their remarks on summation.

For instance, in December the Appellate Division, Second Department, overturned a child molestation conviction because of egregious comments by a Brooklyn prosecutor (People v. Mehmood, 2009-05401, NYLJ, Dec. 20). A month earlier, the Second Department overturned a double murder conviction in People v. Singleton, 500/06, partially because of a Queens prosecutor’s over-the-top summation (NYLJ, Nov. 14).

The Fourth Department in March narrowly affirmed a Monroe County cold-case murder conviction in People v. Wright, 07-01841), but two dissenters said the prosecutor oversold the evidence in her summation (NYLJ, March 25).

Additionally, in November the Fourth Department took issue with the conduct of Erie County prosecutors in three different cases: People v. Morgan, 11-01834, People v. Koonce, 11-02471, and People v. Robinson, 11-02183 (NYLJ, Nov. 13). In the Morgan case, the panel reversed a conviction for essentially the same prosecutorial misconduct it had cited in reversing in the same case three years earlier when it was handled by a different prosecutor.

On the Walker panel were justices John Centra (See Profile), Erin Peradotto (See Profile), Edward Carni (See Profile), Stephen Lindley (See Profile) and Gerald Whalen (See Profile). The appeal was argued by Piotr Banasiak of the Frank H. Hiscock Legal Aid Society in Syracuse for Walker. Assistant Onondaga County District Attorney Victoria White argued for the prosecution.

Banasiak declined comment. There was no immediate reaction from the district attorney’s office.