This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 28 

The People &c.,

 Respondent,

 v.

Leonard Williams, 

 Appellant.

A. Alexander Donn, for appellant.

Jean M. Joyce, for respondent.

DiFIORE, Chief Judge:

Defendant maintains that he was deprived of a fair

trial by the People's PowerPoint presentation, particularly

insofar as it displayed slides that contained annotated images of

trial exhibits. We conclude that, here, where the trial court,

in the exercise of its discretion, took prompt corrective action

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to ensure that the jury was not being misled and gave strong

instructions concerning summation, defendant was not deprived of

a fair trial.

Shortly after midnight on December 20, 2009, several

men broke into the victim's apartment. The victim, who knew

defendant from the neighborhood, recognized defendant as one of

the intruders who attacked him. Defendant shot the victim, cut

him with a knife and poured bleach over his head. The victim

testified at trial that he had been on the telephone with his

brother when the men burst into his apartment. 

At trial, the People introduced surveillance footage of

the street and sidewalk where the victim lived from cameras

located on the building neighboring the victim's apartment, as

well as still photographs from that footage. The exhibits were

authenticated by the custodian of the cameras on the neighboring

building. It was snowing heavily at the time of the offense and

the video depicts six individuals in hooded clothing walking

along the sidewalk through the snow. At one point, the video

shows an SUV driving down the block. After the SUV proceeded

through the traffic light at the corner, the six individuals can

be seen running into what appears to be the victim's building. A

short time later, the camera shows the individuals exiting the

building and running away.

The victim's brother testified at trial. During his

testimony, the prosecutor displayed still photos of the

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surveillance video -- in particular, of the SUV that drove down

the block near the time of the crime. The victim's brother

agreed that he had been driving down the same block on the night

of the blizzard around the time of the offense and that he had

been speaking with the victim on the phone when he was attacked. 

The victim's brother further agreed that the truck he drove at

that time "looked like" the one in the still shot, but testified

that he was unable to definitively identify the vehicle as his.

The victim's brother also testified that, when he was

driving down the block, he saw a few people wearing hooded

clothing walking on the sidewalk. One of the individuals was

short in stature and the victim's brother testified that he

thought he recognized that person as defendant -- "[t]he only

short person I know." Indeed, he greeted the man, saying "what

up," and the man responded with a wave. The victim's brother

admitted that he did not see defendant's face, because it was

dark outside and there was a blizzard going on, but testified

that he "thought it was him."

The trial court, immediately before closing arguments,

gave the jury detailed preliminary instructions, telling them

that they alone were the finders of fact, that what the lawyers

say in summation was "simply argument submitted for your

consideration," that nothing the lawyers say in summation was

evidence and that the jury's recollection of the evidence

controlled, regardless of what the attorneys said.

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In summation, the prosecutor displayed a PowerPoint

presentation containing slides of images of the trial exhibits,

some of which had been annotated through the PowerPoint program

with text, circles or arrows. Significantly, the prosecutor

displayed slides depicting the still photographs from the

surveillance video that he had showed the victim's brother, which

had been annotated with captions such as, "[the victim's

brother's t]ruck" and "[the victim's brother] sees Defendant,"

despite the witness's inability to make those definitive

identifications in his trial testimony. Defense counsel raised

objections at various points, several of which were sustained. 

In addition, the trial court voiced its own concerns, at one

point telling the jury to disregard the prosecutor's annotations

to the images of the trial exhibits. The court ultimately

curtailed the PowerPoint presentation because of those

annotations, stating that it was "not allowing any more . . .

superimposed words."

Following summations, defense counsel moved for a

mistrial, arguing that there had been improper comment in several

areas. Although the court indicated that it was "sympathetic" to

certain of defendant's arguments, it denied the mistrial. When

the court asked whether defendant "want[ed] anything short of a

mistrial," counsel declined. Defendant was convicted of burglary

in the first degree, assault in the second degree and criminal

possession of a weapon in the second degree. The jury acquitted

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him of robbery in the first, second and third degrees.

The Appellate Division affirmed, holding that, to the

extent defendant's arguments were preserved, he was not deprived

of a fair trial by either the PowerPoint presentation or the

prosecutor's summation (123 AD3d 1152 [2d Dept 2014]). The Court

also rejected defendant's ineffective assistance of counsel

claim. A Judge of this Court granted defendant leave to appeal

(25 NY3d 1173 [2015]), and we now affirm.

It is well-settled that attorneys are entitled to broad

latitude in commenting on pertinent matters of fact in summation,

so long as they limit themselves to relevant matters within the

four corners of the evidence (see People v Ashwal, 39 NY2d 105,

109 [1976]). "[T]he District Attorney may not refer to matters

not in evidence or call upon the jury to draw conclusions which

are not fairly inferrable from the evidence. Above all, he [or

she] should not seek to lead the jury away from the issues by

drawing irrelevant and inflammatory conclusions which have a

decided tendency to prejudice the jury against the defendant"

(Ashwal, 39 NY2d at 109-110 [citations omitted]). When

determining whether improper statements deprived a defendant of a

fair trial, we have considered it to be of "vital significance

whether the trial court . . . 'gave standing to the statement of

the District Attorney as legitimate argument'" or whether the

court took prompt corrective action, such as issuing a curative

instruction (People v Broady, 5 NY2d 500, 516 [1959] [citation

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omitted]).

There is no inherent problem with the use of a

PowerPoint presentation as a visual aid in connection with

closing arguments. Indeed, it can be an effective tool. But,

the long-standing rules governing the bounds of proper conduct in

summation apply equally to a PowerPoint presentation. In other

words, if it would be improper to make a particular statement, it

would likewise be improper to display it (see People v Anderson,

__ NY3d __ [decided today]). If counsel is going to superimpose

commentary to images of trial exhibits, the annotations must,

without question, accurately represent the trial evidence (see

e.g. People v Santiago, 22 NY3d 740, 751 [2014]). Moreover, any

type of blatant appeal to the jury's emotions or egregious

proclamation of a defendant's guilt would plainly be unacceptable

(see e.g. State v Walker, 182 Wash 2d 463, 341 P3d 976 [2015]). 

Here, defendant argues that he was deprived of a fair

trial by the annotation of images of the trial exhibits to imply

that the victim's brother, in his testimony, had positively

identified either his truck or defendant from the surveillance

video because this misrepresented the witness's testimony. 

Significantly, the trial court was very attuned to the annotated

slides and, in the exercise of its discretion, ultimately stopped

the slideshow and instructed the jury to disregard the slides

(see People v Galloway, 54 NY2d 396, 399 [1981]). To the extent

any slides may have misrepresented the trial evidence, the trial

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court instructed the jury on more than one occasion that the

attorneys' arguments were not evidence and that the jury was the

sole judge of the facts. Defense counsel also rejected the

court's offer of any less drastic relief after the denial of the

mistrial motion. Thus, under these circumstances, defendant was

not deprived of a fair trial.

Notably, the actual trial exhibits remained pristine

for the jury's examination. In any particular case, where there

is a concern that it will not be clear to the jury that the

annotated PowerPoint slides are not in evidence, or a substitute

for the actual evidence, a specific jury instruction will serve

to emphasize that such representations are merely argument by

counsel. 

Defendant raises several additional arguments directed

to aspects of the prosecutor's summation. Some of them are

preserved and others are raised in the context of an ineffective

assistance of counsel claim. These arguments are without merit. 

As previously stated, the court's prompt corrective action cured

any potential prejudice. In addition, viewing trial counsel's

performance in its totality, meaningful representation was

provided (see People v Speaks, 28 NY3d 990, 992 [2015]). The

remarks at issue here were not "so egregious that counsel's

failure to object render[ed] his overall representation

constitutionally defective" (People v Wragg, 26 NY3d 403, 411

[2015]).

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Accordingly, the order of the Appellate Division should

be affirmed.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera,

Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

Decided April 4, 2017

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