SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

996 

KA 11-02286 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

AARON HICKS, DEFENDANT-APPELLANT. 

 

LEIGH E. ANDERSON, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO

OF COUNSEL), FOR RESPONDENT. 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered November 3, 2011. The judgment

convicted defendant, upon a jury verdict, of criminal possession of

marihuana in the second degree and operating a motor vehicle with

excessively tinted windows. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law and a new trial is granted. 

Memorandum: On appeal from a judgment convicting him following a

jury trial of criminal possession of marihuana in the second degree

(Penal Law § 221.25) and operating a motor vehicle with excessively

tinted windows (Vehicle and Traffic Law § 375 [12-a] [b] [2]),

defendant contends that the evidence is legally insufficient to

support the conviction of criminal possession of marihuana because the

People failed to establish that he possessed the bags of marihuana at

issue. We reject that contention (see generally People v Bleakley, 69

NY2d 490, 495). We agree with defendant, however, that he was denied

a fair trial by prosecutorial misconduct. 

We note at the outset that, as the People correctly conceded at

oral argument, the prosecutor engaged in misconduct by asking

defendant on cross-examination to characterize prosecution witnesses

as liars (see People v Washington, 89 AD3d 1516, 1516-1517, lv denied

18 NY3d 963; People v McClary, 85 AD3d 1622, 1624) and, indeed, the

record establishes that she repeatedly did so. Defense counsel

eventually objected to that line of questioning, but Supreme Court

overruled the objection and the improper questions continued. The

prosecutor then exacerbated the harm arising from the prior misconduct

by stating during her summation that the defense theory was that “the

police are liars.” 

Unlike the dissent, we cannot conclude that defendant opened the
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KA 11-02286 

door to the prosecutor’s conduct by clearly suggesting that the

prosecution witnesses had fabricated their testimony (cf. People v

Head, 90 AD3d 1157, 1158; People v Buel, 53 AD3d 930, 931-932). At no

time during his direct testimony did defendant suggest that the police

officers fabricated their testimony and, when asked on crossexamination whether he believed that the police had a reason to frame

him, defendant responded, “I don’t know the reason, I don’t know

what’s - - I don’t know why I’m here today.” Although defendant’s

testimony with respect to several matters was at odds with the police

officers’ testimony, it does not necessarily follow that he was

thereby suggesting that the police officers had fabricated their

testimony. 

We further conclude that the prosecutor also engaged in

misconduct during her summation by stating that “there’s been no

evidence that there was any plea bargain available in this case.” The

record demonstrates that a plea bargain had in fact been offered in

writing to defendant by that same prosecutor, and that defendant

rejected the offer. Although the prosecutor was technically correct

that no evidence of the plea offer had been admitted at trial, it may

be readily inferred that the prosecutor intended to mislead the jury

on this point and was successful in doing so. We also agree with

defendant that the prosecutor engaged in misconduct by asking

defendant on cross-examination whether he knew about the criminal past

of his companion (see People v Cheatham, 158 AD2d 934, 935; People v

Shivers, 63 AD2d 708, 709). Again, defense counsel’s objection to

that questioning was overruled.

We conclude that “the cumulative effect of the prosecutor’s

cross-examination and summation errors deprived defendant of a fair

trial” (People v Ortiz, 69 AD3d 490, 491; see People v Calabria, 94

NY2d 519, 523). We therefore reverse the judgment of conviction and

grant a new trial, “ ‘without regard to any evaluation as to whether

the errors contributed to the defendant’s conviction. The right to a

fair trial is self-standing and proof of guilt, however overwhelming,

can never be permitted to negate this right’ ” (People v Fredrick, 53

AD3d 1088, 1089, quoting People v Crimmins, 36 NY2d 230, 238). 

All concur except SCUDDER, P.J., and SMITH, J., who dissent and

vote to affirm in the following Memorandum: We respectfully dissent. 

While we agree with the majority that the prosecutor engaged in

misconduct by questioning defendant about his companion’s prior

criminal history (see People v Cheatham, 158 AD2d 934, 935; People v

Shivers, 63 AD2d 708, 709), we do not agree that the prosecutor

engaged in misconduct by asking defendant whether prosecution

witnesses were lying. Indeed, we conclude that the People were

incorrect in conceding at oral argument of this appeal that the

prosecutor thereby engaged in misconduct. Rather, “[i]nasmuch as

defendant’s testimony during both direct and cross-examination clearly

suggested that the People’s witnesses had fabricated their testimony,

it was not improper for the prosecutor to ask him whether he believed

that the People’s witnesses had lied during their testimony” (People v

Head, 90 AD3d 1157, 1158; see People v Buel, 53 AD3d 930, 931-932). 

We also conclude that the prosecutor did not engage in misconduct by
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KA 11-02286 

stating, in response to defendant’s summation, that there had been “no

evidence that there was any plea bargain available in this case.” As

the majority acknowledges, that statement was “technically correct”

and, because the jurors are required to make their determination based

solely “on the evidence presented at . . . trial” (CJI2d[NY]

Reasonable Doubt), we cannot conclude that the prosecutor’s statement

was improper. 

Even assuming, arguendo, that the majority is correct that all of

the prosecutor’s challenged conduct was improper, we conclude that

such conduct was not so pervasive or egregious as to deny defendant

his right to a fair trial (see generally People v Kims, 96 AD3d 1595,

1598). Inasmuch as none of defendant’s remaining contentions has

merit, we would affirm. 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court