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Ontario ADA admonished for misconduct

An Ontario County prosecutor is being warned about prosecutorial misconduct in a decision issued Friday by the Appellate Division, Fourth Department.

The court, in People v. Huntsman (2012 NY Slip Op 04476), noted it is not the first time it has cited Assistant District Attorney Jeffrey L. Taylor for prosecutorial misconduct.

“This court has repeatedly admonished Mr. Taylor for various acts of misconduct,” reads the four-page decision, citing People v. Wildrick, 83 AD3d 1455, 1458; People v. Morrice, 61 AD3d 1390, 1391-92; and People v. Carter, 31 AD3d 1167, 1169. “Yet, the record on this appeal establishes that his misconduct has continued. We again admonish Mr. Taylor and remind him that prosecutors have ‘special responsibilities … to safeguard the integrity of criminal proceedings and fairness in the criminal process,’” (People v. Santorelli 95 NY2d 412).

Taylor’s telephone voice message says he is out of the office until June 20. Ontario County District Attorney R. Michael Tantillo said the Huntsman trial was four years ago, that he has since spoken with Taylor and does not anticipate future problems.

In Wildrick, decided April 1, the court expressed disapproval of several of Taylor’s summation comments, which it said “exceeded the bounds of proper advocacy,” by saying the defendant did not think he hurt children he was accused of sexually abusing, but that he thought he gave them a gift of his sexual encounter with them.

The court also noted it was improper to say one of the victims withheld details because he was “worried that the people are going to think that he might be gay” and warned Taylor that “summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command.

“Above all [a prosecutor] 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,” (People v. Ashwal, 39 NY2d 105, 110 [1976]).

A new trial was ordered for Richard M. Wildrick on other grounds. Wildrick was represented by Brigit L. Field.

In Morrice, the court said Taylor failed to correct a witness who denied receiving immunity in exchange for her testimony and even told the jury in his summation that the witness was “getting nothing out of having testified in this case.”

Also cited as improper were:

• Questioning police about a defendant’s invocation of the right to counsel;

• Asking a defense witness if she had ever been arrested for a crime;

• Asking if her boyfriend was incarcerated; and

• Characterizing defendant as a liar, during summation.

Prosecutorial misconduct was cited in that decision, issued April 24, 2009, for reversing Kevin R. Morrice’s conviction of second and third-degree burglary counts, in the interest of justice. Morrice was represented by Gary Muldoon.

A new trial was also granted in Carter, decided July 6, 2006, but not for prosecutorial misconduct, although The Appellate Division did say the prosecutor engaged in misconduct in his opening and closing statements and his cross-examination of defense witnesses.

“We note in particular the prosecutor’s misconduct in emphasizing the age difference between defendant and the victim without clarifying that the age difference was relevant with respect to only one charge, i.e., unlawfully dealing with a child in the first degree,” that decision states. “We note, in addition, the prosecutor’s numerous inflammatory references to defendant as a dangerous sexual predator.”

Tantillo said he did not think the prosecutor’s conduct in Carter “was particularly egregious,” noting the Appellate Division found fault with two aspects of the summation.

“The court criticized the prosecutor’s emphasis of the difference in age between the victim and the defendant, yet this was relevant to one of the charges, which was in fact age-based,” he wrote by email. “The court also found fault with the prosecutor’s calling the defendant a ‘predator,’ yet other cases have held that describing a defendant’s conduct to be ‘predatory’ is appropriate rhetorical comment.

“However, I have no quarrel with the court’s decisions in Wildrick and Morrice, and after their release I met with and counseled the prosecutor regarding avoiding these issues in the future. I do not expect to see any further problems.”

Tantillo said the decisions in Wildrick and Morrice were released after the Huntsman trial, before he addressed the issue with Taylor.

The Appellate Division, in Huntsman, acknowledged prosecutorial misconduct existed, did not specify what it was and noted it did not jeopardize the fairness of the trial.

Huntsman, 35, according to court documents, was convicted by a jury of two counts of fourth-degree criminal mischief, one count of second-degree criminal mischief, four counts of second-degree aggravated harassment and one count each of second-degree burglary, fourth-degree grand larceny and first-degree criminal contempt.

The Appellate Division modified the conviction by reducing the fourth-degree grand larceny to petit larceny and reducing the first-degree criminal contempt to second-degree criminal contempt and ordered the case back down for re-sentencing by Ontario County Court Judge Craig J. Doran.

The higher court agreed with Huntsman that the evidence of the monetary value of allegedly stolen and damaged items is legally insufficient to support those two counts.

Huntsman was represented by Rochester attorney William G. Pixley, who said he was not surprised the charges were reduced, but that it is unusual for the Appellate Division to specifically name an attorney in connection with prosecutorial misconduct.

“Obviously, they didn’t spell it out in the decision, but they felt it was egregious enough that they should point it out and name the prosecutor by name,” Pixley said. “There was a series of comments made by Mr. Taylor during the course of summation. He crossed the line. There were things he said he should not have said. As far as the court’s concerned, the prosecutor crossed the line.”

Specifically, Pixley said Taylor made some comments about Huntsman’s invoking his right to remain silent and that Taylor impeached his own witnesses.

Huntsman was charged with a series of crimes committed in the fall of 2007, which Pixley said culminated in the alleged burglary of his girlfriend’s home.

Huntsman is being granted a new trial in a separate appeal, People v. Huntsman (2012 NY Slip Op 04477), also decided Friday.

In that case, the Appellate Division ruled Huntsman should get a new trial on the counts it reduced in the first appeal, as well as additional counts of second-degree burglary and fourth-degree criminal mischief. The higher court also suppressed statements Huntsman made to police.

The Appellate Division noted Huntsman filed a 440.10 post-judgment motion while the direct appeal was still pending. Huntsman contended statements he gave to police should not have been allowed at trial.

Huntsman, according to court documents, was originally picked up in Seneca County where he was questioned all day by an Ontario County Sheriff’s Department investigator and a Seneca County sheriff’s deputy, after which he was charged in connection with an incident in Seneca County.

At his Seneca County arraignment, Huntsman requested counsel. He was then taken to the Waterloo Police Department where he was again questioned by the Ontario County investigator on Ontario County charges, but the Appellate Division ruled those statements are inadmissible.

Citing People v. Steward, 88 NY2d 496, it ruled “It is well established that, ‘once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease.’ We therefore conclude that defendant’s statement was taken in violation of his indelible right to counsel and must be suppressed.”

Huntsman had been sentenced to up to nine years in prison. He is housed at the Collins Correctional Facility in Erie County.