After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. A new trial is ordered because of the prosecutor’s statements regarding DNA evidence. The weight of the evidence was against the defendant. A gun was found and the defendant confessed. It is important to note, irrespective of the reasons for why it was done, that the prosecutor’s statements are what gives rise to a new trial.
The facts are as follows
On the evening of September 13, 2012, two officers of the Buffalo Police Department were patrolling a high crime area on the east side of the city when they saw a vehicle stop abruptly outside of a house. Defendant exited the vehicle, looked several times at the officers’ patrol car, and walked quickly towards the back of the house. The officers suspected defendant of trespassing and quietly followed him, approaching the house from different directions. They lost sight of defendant for approximately 15 to 30 seconds. Defendant suddenly emerged from behind the house, and one officer began questioning him about his behavior. The other officer reported that he had seen defendant “standing next to” a blue City of Buffalo garbage tote located nearby. When one officer lifted the lid of the garbage tote, defendant dropped his head and said, “oh man.” A loaded gun was inside. Defendant was arrested and confessed to having possessed the gun.
Although the ” Defendant moved to suppress the gun and his statements to the police, arguing that he abandoned the gun in response to unlawful police pursuit and that he was arrested without probable cause,” (id. at p.2), the Court only suppressed the statements, finding that the Police were engaged in observation and not pursuit. While the Court finds that the evidence here is sufficient to support the conviction, the Court finds that the statements made by the prosecutor should result in a new trial.
The Court noted that
At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?”
Irrespective of the Defendant’s guilt (the failure to preserve the argument for appeal and the defense attorney’s failure to object), the court orders a new trial because “the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case” id. (citations omitted).
The case is People v. Rozier, KA 14-01506, NYLJ 1202769726067, at 1 (App. Div., 4th, Decided October 7, 2016)