‘Boorish’ Remarks Not |Grounds for New Trial

     ALBANY, N.Y. (CN) – A woman received a fair trial despite her attorney’s failure to object to gender stereotypes used by the prosecutor in summation, New York’s highest court ruled.
     A jury convicted Urselina King of burglary and assault in a 2008 hallway ambush in Brooklyn.
     The victim testified that King, armed with a knife, and a masked man, who brandished a gun, attacked her as she put her key in the apartment door.
     They beat her, dragged her inside, beat her some more, ransacked her apartment and stole about $300, according to court records.
     The victim, whose boyfriend was the father of King’s two children, claimed she had been harassed by King before. She suffered fractures and cuts to her face and head.
     The prosecutor painted the defendant as obsessed and jealous.
     During summation, he pointed to the victim’s injuries and suggested that “[o]nly a woman would inflict this kind of beating. Only a woman who is trying to maim and disfigure her rival … would cause this kind of injury.”
     “[H]ell have no fury as a woman’s scorn [sic],” he also told the jury.
     On appeal, King raised several claims, including violation of her fair-trial rights because her attorney did not challenge the prosecutor’s summation.
     The Appellate Division’s Second Department in Brooklyn upheld King’s conviction, although a dissenting justice said she would have reversed it and ordered a new trial in the interest of justice.
     King then took her argument to the Court of Appeals, which affirmed the conviction on Tuesday. Again, one judge dissented.
     Writing for the majority, Judge Eugene Pigott said the panel determined that “defense counsel’s failure to object during summation did not amount to ineffective assistance of counsel such that a new trial is required.”
     The judges, though, saw the prosecutor’s remarks as “boorish,” “over the top” and “simply ridiculous.”
     “[T]he prosecutor’s appeal to defendant’s gender was inexcusable and irrelevant, particularly since jealousy and rage are emotions shared by both genders,” Pigott wrote.
     He said the decision to uphold King’s conviction “should not be interpreted as countenancing such summation remarks,” and urged trial courts to “reprimand counsel for making such remarks.”
     Pigott said King’s attorney offered her “meaningful representation” overall by presenting an alibi defense, attacking the credibility of prosecution witnesses, and attempting to introduce an alternate theory of who might have beaten the victim – even if the latter was precluded as hearsay.
     Judges Sheila Abdus-Salaam, Leslie Stein and Eugene Fahey concurred.
     Chief Judge Janet DiFiore and Judge Michael Garcia took no part.
     Judge Jenny Rivera dissented, saying she would have reversed on two grounds, including defense counsel’s failure to object to the gender-based summation.
     “[C]ounsel’s silence in defendant’s case during the prosecutor’s summation permitted statements to the jury that were deeply prejudicial to the defense,” she wrote. “The record establishes that in his closing statement the prosecutor relied on gender stereotypes intended to undermine the defendant’s case by denigrating the defendant and women as a class.”
     She noted that because King offered an alibi defense, the prosecutor “sought to paint defendant as a violent harpy and the complainant as a vulnerable and stalked woman.”
     “Of course, these stereotypes have no grounding in fact and certainly not in any evidence placed before the jury during the trial,” Rivera wrote.

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