Reversal for prosecutorial misconduct

The cumulative effect of improper comments by a prosecutor in summation can lead to reversal in the interest of justice, even though the claim was only partially preserved.  In People v. Spann (2d Dept. 3/15/2011), the Defendant was charged with CPW 2º after an officer noticed a gun during a traffic stop.  The court pointed to the following errors during the prosecutor's summation:

  • Arguing that the Defendant's nervousness was consciousness of guilt and that the Defendant's contention that this was due to a medical contention was a "smokescreen" and "smoke and mirrors."
  • Informing the jury that the only way it could find reasonable doubt was if it believed the Defendant.
  • Repeatedly arguing that the gun was found under the front passenger seat when the testimony only established that it was under the "front seat."

Interestingly, the Second Department's opinion did not address harmless error.  (LC)

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