night before he said he said that he got and came during the course of this melee with him between him and his drug contacts and so anything that goes to the credibility of their side is going to be critical because that's what the case boils down to who are you going to believe and permeating this entire record are improper evidence improper arguments that go to that very question and and pretty much the district court and even the appellate division and even occasionally the appellate agree that there were fair trial or the trial attorney for not having objected to the errors in summation was not ineffective because the defendant wasn't hurt by them so i think it's important to understand exactly how those facts  into this the kinds of the evidence that comes in about mr griggs is evidence that he is he beat his partner he absolutely right and you know i read the both submissions over the weekend again and i don't remember seeing that the prosecutor said that but maybe i'm mistaken  don't waste your time now because you only have a limited amount of it  signed it just got thrown off let me let me go back the whether or not mr griggs is to be believed is absolutely essential and just that he was in possession of the gun but why the gun was shown to her it's rather strange you think it would be something would be strange for the jury to hear he showed me the gun and of story no further comment i saw a gun in his possession no explanation of why how where there is no we have made no objection to the fact that she testified that he threatened her with the gun and said if you believe they shoot you we haven't objected t and that's the story with the possession of a gun the fact and you think that if the jury heard that he hit her as opposed to just merely that he threatened her friend to kill her if she left and waved a gun at her that that's what prejudice the jury against him not the fact that he's waving a gun at this woman that's it that's part of the whole mix that has to do with his credibility her credibility with especially with respect to the possession of a gun is extremely questionable she claims that he pointed the gun at her and threatened her and yet the next day she go shopping she goes out with him they go shopping he takes to the hospital he takes to the hospital again she claims that she told her grandmother that he had this gun but nobody seemed to care about it he testifies that he told she testifies that she told people that she worked with him that the gun you've never heard of a domestic violence victim continuing to consort with the person who victimized her i am absolutely not saying that she had to be disbelieved and he had to be with that saying is that in terms of the jury weighing the evidence they had evidence to weigh each side and that the the weighing was tipped by the fact that other stuff came in about him that shouldn't have come in that that made his credibility questionable for reasons that it should have been questionable so it's a question of have the jury's going to weigh the respective credibility of which supreme court decision is the decision of the new york state courts a manifest it's misinterpretation fair trial and the test is a very general one it's a question about whether or not there are fundamental concepts conceptions of justice that are violated and and it is our argument that it is unjust for somebody to be convicted not for what they do but for who they are and if there's a possibility that that happened if that's the way the evidence came down and i should add that the that the prosecutor made use of that evidence and then built on it in summation so that it magnifies the unfairness to the defendant not only did he talk about her being a victim and bad and then he talks about her being beaten which is not supported by the evidence he talks about the fact that the if yes if you say it's no problem that he introduced that she was threatened with a gun and told that she would be shot if she ever left him isn't it a fair comment that she's a domestic violence victim i mean isn't that domestic violence the the question is the context and in the context of of that and the other remarks he made he was saying feel sorry for her and i don't know if it's her being in domestic violence victim is in fact a fair consideration for the jury what she what he did absolutely the fact that she's a domestic violence victim that's that's it that's a matter of sympathy that's just saying please feel sorry for her she's a domestic violence victim and domestic violence victims don't always tell the truth either  so so it does it's not relevant to what the jury was supposed to be considering and so when when the district attorney builds on this in summation then then mr griggs is in danger of being convicted because of the kind of person he is and that is unjust and that i think satisfies the supreme court test thank you  good afternoon your honor sir david heritier of the erie county district attorney's office on behalf of the respondent the petitioner here was convicted after a fair trial on overwhelming evidence obsessing a loaded firearm none of the errors alleged by the petition r rice the standard for habeas relief with respect to the admission of the petitioners prior bad acts this is a state law evidentiary issue it does not come close to the extraordinary  fatal to his temporary unlawful possession of a weapon defense the appellate division found that the overall that the prior bad acts evidence was more pressure useful prejudicial than probative but even if they went too far that's a fence didn't tell the police about it until he heard them talking about it appears as the politician found his temporary unlawful possession offense was simply not viable in the prior bad acts evidenced even to the extent they may have the petitioner were said to hit his girlfriend with a gun correct yes or no none of the police officers who testified ever explicitly said that the gun was hidden nobody suggested that the gun was hidden right then and used that word exactly your honor they did say one of them said it and it looked like it in place there deliberately but it was underneath the facts know that that word was not used  there is no prejudice and there was a reference to the petition who signs a trial right no your honor and there was no the petitioner testified before the grand jury that testimony was admitted  the it is a fair comment a fair inference from the evidence that the petitioner hit the gun and the full context of the evidence he runs into this yard the gun was found here placed underneath a fence he didn't tell the police about it even though and that is one of the factors that the court must consider in the temporary and waffle possession it's not a fair comment is it to say that a defense lawyer was having a casual conversation with one of my evidence your honor i think he certainly would have been better off not referencing the fact that he had spoke without a defense lawyer and he just he could have just said it's my view that that's what defense lawyers do well you know you're here on behalf i agree that that comment should not have been made in that way what he what he was within his rights to do was focus the jury's count attention on the evidence because defense counsel summation was extremely aggressive he attacked probably what happened which i think if you look at the record that is an extremely dubious proposition so the prosecutor is trying to focus the jury's attention on the evidence the way he did it was not ideal i would i would agree extent there's any argument that the prosecutor was vouching for the witnesses the defense summation specifically accused the prosecutor by name as not believing in his case and that's why he didn't he didn't believe the witness and that's why he made  and some d n a testing done it was a pretty extraordinary thing to say and may have justified things that wouldn't otherwise be justified by way of that chain but both sides had there was also the issue of the defendant stealing her debit card which which you know the th part and found should not have come in and then there was some stuff that came in some evidence that came in through and that's why he was worried about having even temporary possession of the gun even innocently because he thought the police would hold that against him and arrest him so it's not as if his character such as it was was not before the jury for a whole host of reasons having nothing to do with and he specifically theft or whatever that's right the the nature of his defense in many of these issues and and there was again it was highly relevant to the defense that he chose to put forward that he possessed the gun the night before so especially in the context of the state law evidentiary ruling obviously there was much  that's a lot of different powers right i don't know if i'd i'd say a lot your honor i think there was certainly a lot of prior bad acts evidence but only only a small number i would say that were in error that the debit card is in the context of the entire trial these were remote issues like the debit card issued in really bear on the questions the jury had to decide you know to the extent that it made him look like a bad guy that the evidence that was properly before because that's at least that part of it was not not probative at all but i think i think the prejudicial effect of something like that is minimized by the fact that that it it was really insignificant to do the issues before the jury and a transcript page six hundred and sixty eight is where he where the district attorney says he hit me with a gun sorry that i didn't have that before i just wanted to underline two more things in the summation that that was discussed that i i didn't get to e their explanation of what they saw when they found it would be very very critical and the reason this is so bad is that in fact if you believe mr griggs as as i think you must have too that there was this melee i mean there was a witness to it and he got beaten by these people and they took his pants and then you may even believe that that's where he got the gun according to possession wasn't available to him and in fact the jury was told that that was one of the elements that it should consider in deciding whether or not the temporary innocent position defense was available was there an interpo l statement that he hit her with a gun and that it was the gun was hidden that's why the defense lawyer was ineffective and that's why the actual argument is ineffective assistance of counsel for failing to object she didn't have the occasion to interject at that particular moment unless the judge specifically remembered the colloquy about hidden on cross examination  and just to say a moment of that the prejudice involved in the ineffective assistance of counsel claim a jury without that or given taishan without that misunderstanding about whether the gun had been hidden or not without having heard from the prosecutor that the defendant had gone to this drug transaction in order to rob people which implies that he was carrying a weapon and that was the prosecutor's theory and that was rooted in the statement it's a stretch it's an inference but dependence girlfriend said something about he was going to go and flash the money and then do  had to do and then it will stretch so when you take the combination of all of those and the same as far as the hidden the actual testimony of the officer was that the gun was placed in a particular place where it could be found again where there was a landmark and was not tossed into the so that is not what that is not what  it as i recall it by the officer that he'd said no he wouldn't say it was but the officer i'm i thought did say that it had and it was placed in a particular place as opposed to it just landed in the woods that there was some testimony about it being the ups even gave sort of opinion testimony which may or may not have been right or permissible as to the specific location in which it was at the question is