Case Detail
CitationPeople v. De Vito, 800 N.Y.S.2d 250 (N.Y. App. Div. 2005)
CrimeSex crimes
Pros. First NameUKN
Pros. Last NameUKN
Trial Year2003
BodyAppeals court
OpinionThe New York Supreme Court, Appellate Division, held that the defendant was deprived of right to fair trial due to prosecutor's "egregious" misconduct: "While defense counsel did raise the issue of defendant's homosexuality during jury selection in an attempt to ensure an impartial venire, he did not open the door to the degree of exploitation and denigration undertaken by the prosecutor during trial. Examples of the prosecutor's malevolence and impropriety abound on cross-examination and, most notably, during summation. During defendant's cross-examination, the prosecutor improperly probed defendant's sexual conduct with his past and present homosexual partners, clearly attempting to divert the jury's attention away from the evidence relating to the charged crimes. While questions concerning the content of photographs contained on defendant's computer were relevant to impeach defendant's direct testimony regarding how and when his wife learned of his homosexuality, we find that the prosecutor's prolonged inquiry was excessive and highly inflammatory. On summation, the prosecutor impermissibly attempted to utilize defendant's homosexuality as evidence of the crimes charged by referring to the trial as a case of 'De Vito's libido.' Another egregious violation occurred when the prosecutor refuted defendant's suggestion on summation that this was a witch hunt by remarking, '[Defendant's] not a witch. He's Joe's bitch,' in reference to defendant's domestic partner. Other improper remarks included reference to a particular pornographic movie and a comparison between certain defense witnesses and celebrities based on their similar names and physical appearances. . . .The prosecutor's remarks were highly prejudicial, did little to impeach defendant's testimony or credibility, were irrelevant to the crimes charged, appealed to the fears and prejudices of the jury . . . and were designed to sidetrack the issue away from defendant's guilt or innocence . . . .They had no place in this trial. Although County Court properly sustained objections when raised, the court's curative instructions were insufficient to overcome the extreme prejudice that resulted from the prosecutorial misconduct. In addition, while the court properly permitted inquiry into defendant's sexual activity allegedly occurring during the children's nap time, since both victims testified that their abuse took place during that period and defendant denied any such opportunity, such inquiries should have been limited and brief. Moreover, the prosecutor should not have been permitted to repeatedly imply—without any good faith basis—that defendant had sexual contact with every man that entered into the daycare center. Finally, given the foregoing and that defendant's statement was improperly admitted under the circumstances, we cannot say that the result would have been the same even absent the misconduct [citations omitted]."
Determination Year2005
Misconduct TypeTR: Inadmissible
TR: Inflammatory
C/S EffectReversal of conviction
Pros. Misc. ReportedUKN
Sanction TypeUKN
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