Case Detail
CitationPeople v. Slishevsky, 948 N.Y.S.2d 497 (N.Y. App. Div. 2012)
CrimeSex crimes
StateNY
Pros. First NameUKN
Pros. Last NameUKN
FederalNo
Trial YearUKN
BodyAppeals court
OpinionThe New York Supreme Court, Appellate Division, held that the cumulative effect of evidentiary errors, coupled with prosecutorial misconduct, deprived defendant of a fair trial and further that some of the counts against the defendant were multiplicitous or constituted lesser–included offenses: "The court erred in admitting testimony elicited by the prosecutor establishing that Child Protective Services (CPS) 'indicated' a report, following an investigation of the subject victim's allegations, which demonstrated that CPS 'found credible evidence that there [was] some abuse or maltreatment.' Such evidence 'intruded upon the function of the jury to determine whether to credit the victim's [allegations]' [citations omitted]. Further, we conclude that the court erred in admitting the testimony of a police detective to the effect that defendant never asked for details of the allegations against him. That testimony, which was elicited by the prosecutor, infringed upon defendant's right to remain silent. ‘Based on constitutional considerations, it has long been and continues to be the law in this State that a defendant's silence cannot be used by the People as a part of their direct case’ [citations omitted]. Here, the evidence of defendant's choice to remain silent on the specifics of the allegations 'created a prejudicial inference of consciousness of guilt' [citation omitted]. Further, the prosecutor's comment during summation that the presumption of innocence is a “notion” was patently improper [citations omitted]. Finally, the prosecutor's statement during her cross-examination of the victim's mother that she was not testifying honestly was manifestly improper [citations omitted]. As the court recognized, the prosecutor was not entitled to impeach the credibility of the mother's testimony on a collateral issue[citations omitted]. Although defendant therefore was entitled to 'a strong curative instruction' in order to dispel the prejudice occasioned by the remark [citations omitted], the court failed to give one. The clear impropriety of the prosecutor's remark, in the absence of an appropriate curative instruction, contributed to the cumulative effect of evidentiary errors and prosecutorial misconduct, which deprived defendant of his right to a fair trial [citation omitted]."
Determination Year2012
Misconduct TypeTR: Impugning
TR: Inadmissible
C/S EffectReversal of conviction
Pros. Misc. ReportedUKN
SanctionsUKN
Sanction TypeUKN
Web linkhttp://www.leagle.com/decision/In%20NYCO%2020120706289