On June 15, 2006, following a jury trial, defendant was found guilty of Attempted Assault in the First Degree [P.L. § 110/120.10(1)] and Criminal Possession of a Weapon in the Second Degree [P.L. § 265.03(2)]. Defendant was acquitted of Attempted Murder in the Second Degree [P.L. § 110/125.25(1)], and, in accordance with the Court's instructions [C.P.L. §§ 300.40(3)(b), 300.50(1)], the jury did not reach one count of Attempted Assault in the Second Degree [P.L. § 110/120.05(2)] or one count of Criminal Possession of a Weapon in the Third Degree [P.L. § 265.02(4)]. By notice of motion filed on July 19, 2006, defendant moves to set aside the verdict pursuant to C.P.L. Section 330.30(1), on the theory that the prosecutor engaged in misconduct that would require reversal as a matter of law by an appellate court.

The matter was subsequently adjourned to August 14, 2006, and, again, to September 28, 2006, for the People's response. On September 28, 2006, the Court gave the People still more time in which to file their response, scheduled a date for any reply by the defense, and adjourned the case to December 11, 2006, for decision. The People's response was not filed until October 25, 2006. When the matter appeared on the calendar on December 11, 2006, defense counsel submitted an affirmation of engagement, and sent a message to the Court signifying that reply papers would not be filed on defendant's behalf. Accordingly, the Court immediately marked the matter submitted and adjourned the case to January 16, 2007, for decision.

For the reasons set forth below, defendant's Section 330.30(1) motion is denied.

The Court's authority to disturb the verdict in this case is "strictly circumscribed." People v. D'Alessandro, 184 AD2d 114, 117 (1st Dept. 1992), appeal denied, 81 NY2d 884 (1993); see C.P.L. § 330.30; People v. Carter, 63 NY2d 530, 536 (1984); People v. Ponnapula, 229 AD2d 257, 266-67 (1st Dept. 1997). Because defendant's motion is premised upon subdivision one of C.P.L. Section 330.30, the Court can disturb the verdict prior to sentence only if the grounds for the motion would not just permit, but would require, an appellate court to reverse the conviction as a matter of law. See People v. Hines, 97 NY2d 56, 61 (2001); see also People v. Carthrens, 171 AD2d 387, 391 (1st Dept. 1991). This means that each of defendant's current complaints about the prosecutor's conduct must have been properly preserved before this Court by a [*2]sufficiently-specific objection or other application for relief. See People v. Hines, 97 NY2d at 61; People v. Albert, 85 NY2d 851, 852-53 (1995); People v. Balls, 69 NY2d 641, 642 (1986); see also People v. Gray, 86 NY2d 10, 20-21 (1995); cf. People v. Medina, 53 NY2d 951, 953 (1981) (when objection to a summation remark is sustained, defendant must request curative instruction or move for mistrial in order to preserve issue). This Court has no power to reach unpreserved claims on a Section 330.30 motion. See, e.g., People v. Everson, 100 NY2d 609, 610 (2003).

I have carefully reviewed the trial transcript in this matter, including the voir dire, the opening, the prosecution's case, the defense case, the summations, the charge, and the Court's response to the jury's notes during the deliberations. My complete review of this trial transcript convinces me that I am not authorized under Section 330.30(1) to disturb the verdict because, on this record, an appellate court would not be required to reverse defendant's conviction as a matter of law. Specifically, to the extent that defendant made sufficiently-specific objections about the prosecutor's behavior in this case, the Court's rulings and curative instructions were more than sufficient to eliminate any unfair prejudice and to ensure that the jury remained properly focused upon appropriate matters, including the evidence in the case, the presumption of innocence and the People's burden of proof beyond a reasonable doubt.

Beyond that, the Court will not address individually all of the complaints set forth in defendant's motion papers. Nevertheless, a few points merit some discussion.

During the voir dire, both sides and the Court learned that the daughter of one of the prospective jurors had played soccer with a girl whose father was a criminal defense attorney. During his questioning of that potential juror, the prosecutor stated, "I want you to tell the jury all the bad things [the girl's father] said about prosecutors" (193-95).^[FN1] Defense counsel lodged an objection, which the Court sustained. The People maintain that the prosecutor's questioning was proper.

Although both sides are entitled to a fair opportunity to question prospective jurors about their qualifications [see C.P.L. § 270.15(1)(c)], the Court retains considerable discretion to police the voir dire. Id. The Court of Appeals has recognized that jury selection is a "time-consuming phase" of the trial, and sometimes the voir dire examinations can "themselves become a potential source of prejudice." See People v. Pepper, 59 NY2d 353, 358 (1983).

No one could fault the prosecutor in this case from trying to ascertain whether the prospective jurors might have had conversations with attorneys tending to prejudice them against prosecutors. Yet, the purported interrogatory addressed to this prospective juror was not a question at all, but was, instead, a poorly-phrased and inflammatory invitation to address the fellow potential jurors in a way that ran a risk of polluting the entire pool. Certainly, if the prosecutor genuinely believed that "all the bad things" heard by this prospective juror might have rendered him subject to a challenge for cause [see C.P.L. § 270.20(1)(b)], no legitimate [*3]purpose would have been served by inviting that individual to repeat such prejudicial remarks to the entire panel. Accordingly, the Court rejects the People's claim that this "question" was proper.

On the other hand, defendant's complaint about this portion of the voir dire cannot form the basis for relief under Section 330.30(1) because the court sustained the objection and counsel never asked for a curative instruction. See, e.g., People v. Atkins, 273 AD2d 11, 12 (1st Dept.), appeal denied, 95 NY2d 960 (2000). Nor did the prosecutor elicit anything even remotely prejudicial to defendant from that prospective juror in any event.

For the same reasons, the Court rejects defendant's other complaints about the voir dire. Indeed, the Court sustained defendant's objection when the prosecutor asked the prospective juror whether one of his responses was "the right answer" (193). The Court also sustained objections to the form of several of the prosecutor's questions relating to accessorial liability and issued a curative instruction (195-97). Since defendant never asked for additional relief, his current complaints are unpreserved. See, e.g., People v. Medina, 53 NY2d at 953.

Defendant next complains about the prosecutor's assertion, at the very beginning of his opening statement, that "this morning is when I finally got it in my head after all these years [that] this is a murder case[; y]et the charge is attempted murder" (642-43). After defendant's objection to that remark was sustained, the prosecutor twice repeated his claim that this "is a murder case." The Court sustained defense counsel's objections to these remarks as well, and warned the prosecutor not to make arguments during his opening statement (643). The prosecutor nonetheless made those arguments two more times, and, in each instance, defendant's objections were sustained (644, 648-49). On the last occasion, the Court told the prosecutor, in the jury's presence, "Don't do that again" (649).

As the Appellate Division, First Department, observed nearly a quarter-century ago, "the function of an opening is not to deliver a summation, but, rather, to give the court and jury a brief outline of the People's case." People v. Rivera, 88 AD2d 892, 893 (1st Dept. 1982). Clearly, the prosecutor should not have used his opening as a platform for making arguments, much less potentially-inflammatory ones. See, e.g., People v. Ni, 293 AD2d 552, 552-53 (2nd Dept. 2002); People v. Castro, 281 AD2d 935, 935-36 (4th Dept.), appeal denied, 96 NY2d 860 (2001); People v. Concepcion, 228 AD2d 204, 206 (1st Dept.), appeal withdrawn, 88 NY2d 982 (1996). Of course, the prosecutor had every right to state in his opening that he would endeavor to prove that defendant and his cohort intended to "murder" the complainant and, indeed, had tried to kill him. He did not, however, have any right to make arguments and deliver what amounted to a summation before he had presented even a stitch of proof, and he certainly had no call to disregard a ruling by the Court, no matter how much he might have disagreed with it. See People v. Rivera, 88 AD2d at 893.

Nevertheless, the prosecutor's tactic of delivering an "unduly theatrical" opening statement [see People v. Castro, 281 AD2d at 936] does not entitle defendant to relief in this case under Section 330.30(1). First, defense counsel's objections to the remarks were sustained.^[FN2] [*4]Second, the jury was explicitly instructed that neither the opening statement nor the summations amounted to evidence (629, 630-31). Third, immediately after the initial objection had been made during the prosecutor's opening statement, the Court reminded the jury that "when I say sustained[,] remember you have to disregard the remark" (643). Fourth, the Court forcefully told the prosecutor in the jury's presence to stop making the argument in question (649). Fifth, the likelihood of jury confusion on this point was virtually nil; there was no claim that the complainant had been killed and, in fact, he ultimately testified. Sixth, the repeated incantation of the phrase "murder case" clearly had no untoward effect on this jurors; after all, they ultimately acquitted defendant on the attempted murder charge. All things considered, it is obvious that the prosecutor's opening statement did not, as a matter of law, deprive defendant of a fair trial.

Next, defendant sets forth a catalogue of assorted questions that, he claims, the prosecutor improperly posed to witnesses. Defendant urges that the prosecutor made gratuitous remarks while framing questions, persistently posed leading questions to his own witnesses, elicited some prior consistent statements, and alluded to facts not in evidence during his cross-examination of the alibi witness. Generally speaking, however, defense counsel was more than vigilant in interposing objections to these matters during the trial. Since the Court sustained most, if not all, of those objections, and the defense did not seek any further relief during the trial, defendant's current complaints about the questioning of witnesses are unpreserved and cannot form the basis for Section 330.30(1) relief. See, e.g., People v. Jacque, 2 AD3d 1362, 1363 (4th Dept. 2003), appeal denied, 2 NY3d 741 (2004); People v. Norman, 1 AD3d 884, 884 (4th Dept. 2003), appeal denied, 1 NY3d 599 (2004); People v. Henry, 264 AD2d 672, 672 (1st Dept.), appeal denied, 94 NY2d 863 (1999); People v. Caicedo, 173 AD2d 630, 630 (2nd Dept.), appeal denied, 78 NY2d 963 (1991); see also People v. Martich, 30 AD3d 305, 305 (1st Dept.), appeal denied, 7 NY3d 868 (2006).

Defendant makes two principal complaints about the prosecutor's summation.^[FN3] He urges [*5]that the prosecutor shifted the burden of proof by suggesting that it was improper to mount an alibi defense while challenging other aspects of the People's case. He also asserts that the prosecutor improperly delivered an aside to the jury during his summation that embodied a suggestion that the People were engaged in an "uphill battle" by virtue of one of the Court's rulings.

During the defense summation, counsel argued, among other things, that "[t]he two main issues" in the case were whether defendant was present at the scene of the shooting, "[a]nd, if he was present, was [he] acting concert with anybody to do anything" (1071). Then, after making various arguments based upon the evidence, including the testimony of the "contentious" alibi witness, defense counsel asserted that "[e]ven if you don't believe her, the People still have to prove beyond a reasonable doubt what happened" (1091). Evidently in response to that assertion, the prosecutor told the jury in summation that defendant "doesn't get to pick sides," that "[h]e either was there or wasn't," and that "[y]ou don't get to argue alternative theories" (1096-97).

A few moments later, the prosecutor began to urge the jury to "think about" the content of a conversation that might have occurred between defendant and the gunman while they were driving to the home of the complaining witness just before the shooting. The Court sustained an objection from defense counsel and told the jurors that they were "not permitted to speculate" (1100). When the prosecutor appeared to repeat the same argument, counsel again objected, and the following transpired:

Defense Counsel:Objection.

The Court:Hold on a second. Members of the Jury, I will caution you, you are not permitted to speculate. You are only allowed to draw reasonable inferences from the evidence. That does not ... mean you get to guess about what may have occurred. Objection is sustained.

The Prosecutor:An uphill battle.

Defense Counsel:Objection.

The Court:Sorry?

The Prosecutor:Uphill battle.

The Court:What does that mean?

The Prosecutor:People's case. We have gone to the top of the hill....

(1100-01)

Following the summation, defendant moved for a mistrial and, in the alternative, sought a curative instruction. Counsel specifically asserted that the prosecutor's remarks about alternative defense theories shifted the burden of proof. In addition, he argued that the prosecutor's "uphill battle" remark could have been construed by the jury as reflecting a belief that there were "two people in the courtroom" the defense lawyer and the judge who were "preventing him from doing what he needs to do," which, according to counsel, was "way out of bounds" (1125-27). [*6]

After extended argument, the Court denied the application for a mistrial and discussed the content of a proposed curative instruction with both sides (1127-36). After adopting at least one of defense counsel's suggestions about the wording of the instruction (1132), the Court instructed the jury as follows, over the prosecutor's objection:

Good afternoon. Members of the Jury, before I turn to my final instructions, I must give you a couple of additional instructions relating to summations. You may have heard a remark that was made after I sustained an objection to a portion of the prosecutor's summation. You may have heard the words "uphill battle". This is not a battle at all. I am not in a battle with anyone. I am not a combatant in a battle. This is a criminal trial. The only question in this case ... is whether the People have proved their case beyond a reasonable doubt. The word[s] "uphill battle" should not ... have been said in response to my ruling on an objection. Remember, my rulings on the law are just that, rulings on the law. We all have our role. Mine is to rule on an objection and no comment after I issue a ruling is appropriate. So, I am instructing you specifically to disregard the remark "uphill battle." In addition, remember, I am the Judge of the law. I am not the Judge of the facts. I don't decide whether the defendant is guilty or not guilty. And, I am telling you now, I don't have any opinion of the facts and nothing that I say, no matter how I say it, should be regarded or interpreted as my having any opinion of the facts of the case....

The next instruction that I need to give you relates to an argument that it is somehow inappropriate for a defendant to argue in [the] alternative when giving a summation. There is nothing wrong with a defendant arguing in the alternative. The burden of proof always remains with the People.

I am going to instruct you further on the burden of proof in a few moments. The burden of proof never shifts[,] even if[,] for example, you were to conclude you did not believe an alibi witness or some other defense witness. It always is the People's burden of proof beyond a reasonable doubt. The People always have that burden. Also it's entirely appropriate for a defendant to argue in the alternative. The defendant is permitted to argue alibi on one hand and something else on the other hand, even if those arguments are somehow inconsistent because the burden of proof always remains on the People. The question is whether the People have met their burden of proof.... (1137-39).

Defendant made no objection to the language of that curative instruction. The Court then delivered its final charge to the jury without any further objection or requests for instructions (1139-82).

As the curative instructions themselves reflect, it is this Court's belief that the prosecutor should not have suggested that there was anything wrong with defense counsel's having made alternative arguments in summation. The "uphill battle" remark also was entirely inappropriate.^[FN4] [*7]Nevertheless, as the Court of Appeals has observed, not every instance of prosecutorial misconduct warrants a new trial; absent substantial prejudice to a defendant, "[r]eversal is an ill-suited remedy" because "it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted. See, e.g., People v. Galloway, 54 NY2d at 401. Here, the Court's prompt curative instructions ensured that the prosecutor's conduct did not deprive defendant of a fair trial. See, e.g., People v. Hicks, 11 AD3d 261, 262 (1st Dept. 2004), aff'd, 6 NY3d 737 (2005); see also People v. Santiago, 52 NY2d 865, 866 (1981).

For the foregoing reasons, defendant's motion to set aside the verdict pursuant to Section 330.30(1) of the C.P.L. must be denied. The foregoing constitutes the Decision and Order of the Court.

Dated:January 16, 2007

Bronx, New York

_______________________________

Joseph J. Dawson, A.S.C.J.