Fourth Dept cites prosecutorial misconduct in overturning conviction

Glasco P. Rozier

The Appellate Division of state Supreme Court, Fourth Department, overturned an Erie County Court criminal conviction because of prosecutorial misconduct and ineffective defense counsel.

Glasco P. Rozier, 27, was convicted in May 2014 of second-degree criminal possession of a weapon. He was sentenced to five years in prison.

On Sept. 13, 2012, two Buffalo police officers were on patrol when they saw a car stop outside a house in a “high-crime” neighborhood. Rozier got out of the car, looked at the officers several times, and walked quickly to the back of the house.

The officers suspected he was trespassing and followed Rozier quietly. They lost sight of him briefly before he re-emerged from behind the house and one officer questioned him about his behavior.

The other officer had seen Rozier standing near a garbage tote. The officers found a gun inside and arrested Rozier.

At the trial a forensic expert testified for the prosecution about DNA evidence collected from the gun, “but the testimony was not conclusive,” according to the decision released Friday.

The expert testified that Rozier “was among one in 15 Americans who could not be excluded as a contributor.”

“Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as ‘overwhelming’ proof establishing defendant’s ‘guilt beyond all doubt,’ ” the panel wrote in the decision.

The prosecutor told the jury: “If the defendant had not possessed the gun, wouldn’t science have excluded him?”

“The prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case,” the panel wrote.

The panel also found that Rozier was denied effective assistance of counsel because “defense counsel’s failure to object to the prosecutor’s misconduct during summation.”