New York Criminal Lawyer Blog
This is an appeal of a man from his judgment in the Supreme Court convicting him of criminal possession of a weapon in the second and third degree, upon a jury verdict. A New York Criminal Lawyer said the appeal brings up for review the denial of the accused man’s motion which was to suppress identification testimony and upon an order the court that reversed the above mentioned decision.
Contrary to the accused man’s contention, the pretrial lineup identification was not improperly suggestive. The photographs taken of the lineup reflect that the slight differences in skin tone between the man and the fillers were not so apparent as to orient the viewer toward the man as the offender of the crimes charged. A New York Criminal Lawyer said that based on records, the skin tone is only one of the factors to be considered in deciding reasonable similarity and differences in skin tone alone will not render a lineup improperly suggestive. A the court does not find that the presence of a small tattoo on the side of the man’s face rendered the lineup improperly suggestive.
The court found that improper remarks by the prosecutor during summation deprived the man of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the man when he stated that the witness testified not knowing what the consequence would be for herself and her family. A said that based on records, a prosecutor may not strengthen the credibility of a witness by making himself or herself unsworn witness and supporting his case by his own veracity and position.
The accused man was prejudiced by the prosecutor’s inflammatory and unsupported implication that the witness was more credible because she testified despite some unspecified possibility of retribution for doing so. There is no support in the record of any threats to the witness or her family and the prosecutor’s comments violated the rule that a prosecutor may not try to express to the jury, by implication, suggestion or speculation, the impression that the man is guilty of other crimes.
Additionally, the prosecutor made improper remarks relating to the man’s tattoos. The man introduced evidence that he has tattoos on his arms in order to undermine the credibility of a witness who testified that she saw him at the crime scene holding a gun and wearing a t-shirt, but could not remember whether the man she saw had tattoos on his arms. A New York Drug Possession Lawyer said the man’s tattoos are described with a smoking gun, bullets, and the words gangster life may have posed some self-created prejudice to the man in and of themselves, a risk that the man had to bear by putting them in evidence. However, the prosecutor’s summation crossed the bounds of permissible expression. Specifically, it was improper for the prosecutor to state his analogy that if it walks like a duck and looks like a duck then it’s a duck. It argues that the violent nature of the man’s tattoos established his identity as a person seen in possession of the gun. Since there was no evidence from any eyewitness that the person seen at the crime scene had tattoos, the only possible purpose of the comments would have been to improperly argue that it was more likely that the man had committed the crime because of his bad character, which the prosecutor constructed for the jury from the violent nature of the man’s tattoos.
Under the situation of the case, since it cannot be said that there is no significant probability that the decision would have been different absent the cumulative and damaging effect of those errors then the court cannot consider them harmless.
Because of the danger that we encounter in our everyday life, some of us seek security in bringing with us weapons such as gun. However, unwanted crimes can be committed while in possession of that weapon. If you need legal help for gun-related issues, you may consult a Nassau County Possession of a Weapon Attorney from Stephen Bilkis and Associates. For crime issues brought about by weapon possession, sex crimes or theft, a Nassau County Criminal Attorney can offer enormous legal options that you may consider in contemplating your legal action.