Appellate Division reverses 2011 conviction, cites prosecutorial misconduct

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The Appellate Division of State Supreme Court overturned a 2011 gun conviction and granted a new trial partly due to prosecutorial misconduct by an assistant Monroe County District Attorney.

In a decision released Friday, the Fourth Department reversed the jury verdict convicting Eric Porter of second-degree criminal possession of a weapon and third-degree criminal possession of a weapon. Porter was sentenced to 12 years in state prison and five years of post-release supervision.

The charges stem from a traffic stop on Dec. 29, 2008. Porter, 39, was a passenger in the vehicle which had a suspended registration. A rifle was found under a blanket in the car.

“Obviously I’m delighted that he’s getting a new trial,” said James Hinman, Porter’s trial lawyer.

Hinman said he expects to retry the case rather than reach any sort of plea agreement.

“I doubt that Mr. Porter would agree to anything. Frankly, I don’t know why he would. His position at the trial was very clear, that it wasn’t his rifle and that they didn’t have any proof that it was his rifle,” Hinman said.

James A. Hobbs, who argued the appeal for Porter, also contended that Porter “was denied effective assistance of counsel.”

“He was actually quite a vigorous attorney throughout this case,” Hobbs said. “Based on the transcripts there were a number of legal issues he fought very hard on, but during the summations I felt there was a lot of misconduct that wasn’t objected to.”

The prosecutor, then-assistant Monroe County District Attorney Paul Irving, declined to comment. Irving is now a juvenile prosecutor for the Monroe County Law Department.

The appeals court overturned a trial ruling by state Supreme Court Justice Daniel J. Doyle to allow a statement from the defendant to be used by the prosecution and agreed with defense arguments that “various instances of prosecutorial misconduct deprived (Porter) of his right to a fair trial.”

Although Hinman did not raise the prosecutorial misconduct issue at trial to preserve it for later appeal, the Appellate Division exercised its power to review the matter “in the interest of justice.”

This is the second time the Appellate Division recently granted a new trial for prosecutorial misconduct by an assistant Monroe County District Attorney. In a decision released Dec. 31, the court granted a new trial to Michael D. Jones, who was convicted by a jury in September 2009 of attempted first-degree rape, attempted first-degree criminal sexual act and second-degree assault.

In the Jones case the Appellate court cited improper remarks made by the prosecutor during her summation and found that she misstated the probative value of DNA evidence.

These trials took place before Monroe County District Attorney Sandra Doorley was in office, but she said Monday that she is now working with her staff to avoid these sorts of problems in the future. Prosecutors now present their case for most major crimes to bureau chiefs and top management and receive feedback and advice, Doorley said.

“We don’t do it 100 percent for every case, but there’s more active involvement with the bureau chiefs on the actual trials. It’s important for us to move forward and to train and to make sure that these things don’t happen again,” Doorley said.

In Porter’s case, the Appellate Division said Porter was unlawfully detained at the scene and a statement he made while standing there should have been suppressed because it was “the fruit of that unlawful detention.”

Police put the driver in a patrol car and had Porter wait on the sidewalk nearby as they inventoried the contents of the car before it was impounded. Porter told police twice there was a gun in the car. At trial the only evidence linking Porter to the gun was Porter’s two statement that there was a rifle in the car.

Porter’s statements about the gun in the car should not have been admissible because his detention at the scene was improper, the court said.

“He had asked for permission to leave. He tried to walk away and the police stopped him from walking away,” Hobbs said.

The prosecutorial misconduct related to cross-examination of the driver of the car and remarks made during the summation.

During the cross-examination, Irving questioned the woman about an out-of-court conversation and asked her if she came to his office and said Porter tried to get her to take blame for the gun.

After the witness twice denied that the conversation happened, Irving said: “But you were the one who was convicted of a scheme to defraud, correct?”

The prosecutor both improperly interjected his personal opinion about the truthfulness of the testimony and suggested that his version of events should be believed, the Appellate Division said in the decision.

“The reason that is considered misconduct is it sort of puts the prosecutor in the position of testifying himself,” Hobbs said,

“He’s asking questions about a conversation that he was a participant in. It immediately puts the prosecutor’s own version of events in play and his own credibility in play. He’s acting as both a witness and a questioner at that point,” Hobbs said.

During his summation, Irving improperly denigrated the defense case by referring to some contentions as “nonsense,” and claimed that the defense was “twisting things” and employing “tricks,” according to the decision.

Irving called defense witnesses “a cast of characters” and referred to them as “people coming out of the woodwork,” and called one witness “a piece of work.”

He accused defense witnesses of lying and alleged that defense witnesses met secretly to plan their testimony, according to the decision.

“That was patently improper,” the court said in the three-page decision.

Irving also improperly suggested that an acquittal would require the jury to find a conspiracy by police and suggested the defendant had a burden of proof.

“In light of the nature and number of instance of prosecutorial misconduct, we conclude that defendant was deprived of his right to a fair trial,” the court said in the decision.