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First Department Overturns Conviction; Bronx D.A. Labels Prosecution a Study in “How Not To”

In People v. Ortiz, 2010 NY Slip Op 00387, the First Department overturned a man’s burglary conviction on account of numerous prejudicial trial errors. First, the court noted that prosecuting attorney improperly impeached the defendant by implying that his initial plea of not guilty to certain past convictions followed by a subsequent guilty plea implied that he was dishonest. Of course, most, if not all criminal defendants will initially enter a plea of not guilty, even if they fully intend to take responsibility for their actions, so as to allow both sides to come together with all of the relevant information necessary to make a decision on plea negotiations or decide on going to trial. Thus, the prosecutor’s use of the defendant’s not guilty plea was unfair and unfounded. As put by the court: “This questioning not only tended to draw an improper inference of dishonesty, but also violated the court’s Sandoval ruling, which only permitted elicitation of the existence of defendant’s prior convictions.”

Next, the prosecutor introduced a mugshot photograph of the defendant’s girlfriend and asked the defendant about her own criminal record. The Court chastised the government for this guilt-by-association tactic: “This evidence had no purpose but to suggest that defendant was associated with a disreputable person (see People v Cheatham, 158 AD2d 934, 935 [1990]).” Id.

Finally, the prosecutor made improper remarks on summation, including an assertion that the defendant “was waiting for the jury to ‘give him his razor back and let him walk out the door.’” Id.

Thus, it is not surprising that the New York Law Journal quoted a Bronx District Attorney spokesman as stating that “we’ve already used this case as a ‘how not to’ example.”